MARIA SACCHETTI @ WASHPOST: Substantial Majority Of Those Migrants Detained in Trump’s “New American Gulag” Have No Criminal Record!

tohhttps://www.washingtonpost.com/national/when-trump-declared-national-emergency-most-detained-immigrants-were-not-criminals/2019/02/22/a332480e-36ad-11e9-a400-e481bf264fdc_story.html

Maria writes:

Before President Trump declared a national emergency on the U.S. southern border on Feb. 15, he cited concerns that the United States was being flooded with murderers, kidnappers and other violent offenders from foreign countries.

According to new U.S. Immigration and Customs Enforcement figures obtained by The Washington Post, the nation’s immigration jails were not filled with such criminals. As of Feb. 9, days before the president’s declaration, nearly 63 percent of the detainees in ICE jails had not been convicted of any crime.

Of the 48,793 immigrants jailed on Feb. 9, the ICE data shows, 18,124 had criminal records. An additional 5,715 people had pending criminal charges, officials said, but they did not provide details. ICE also did not break down the severity of the crimes committed by or attributed to detainees.

An average of 59 percent of detainees in custody during this fiscal year had no criminal history, according to ICE.

“It proves this is a fake emergency,” said Kevin Appleby, policy director at the Center for Migration Studies, a New York-based nonpartisan immigration think tank. “It really shows that what the president’s doing is abusing his power based on false information.”

. . . .

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Read Maria’s complete article at the above link.

We know that most of the migrants held in the “New American Gulag” (“NAG”) are neither security threats nor realistic dangers to our communities. From my experience many of those held because they are “criminals” have either relatively minor offenses (e.g., driving without a license) or even if the offenses were more serious have long ago completed criminal sentences and have been free in society without recurring problems.

So, why are the “non-criminals” being held in the NAG? Well, DHS would say it’s because they are threats to “abscond” before hearings, citing highly questionable “self-fulfilling” numbers opaquely generated by EOIR and DHS. But outside studies of DHS and EOIR statistics have shown a much different picture.

Individuals with lawyers and applications filed, particularly for asylum, who have the system and their obligations thereunder carefully explained to them in their own language, show up almost all the time for Immigration Court.

Likewise, migrants released on moderate bonds (in the $1.5 to $5K range — much lower than the current “national average”) also appear with regularity, as do those with ankle monitors and other “alternatives to detention.”

Thus, a reasonable Administration genuinely interested in the integrity of the Immigration Court process would severely curtail the use of civil immigration detention, particularly by private entities, which is both wastefully expensive and inhumane.

Instead, they would rely on a proven combination of lower-cost, more humane, and due process promoting alternatives: getting applicants matched with lawyers, pro bono, low bono, or paid; encouraging individuals to locate in communities where lawyers, family resources, and NGOs are available; and using reasonable bonds, ankle monitors and other types of “call in monitoring” to help insure appearance at further hearings.

An improved Immigration Court system where all judges were uniformly fair, impartial, and courteous to applicants and their lawyers, and where asylum was granted more generously in accordance with the standards set forth in the Refugee Act of 1980, the Supreme Court’s decision in INS v. Cardoza-Fonseca, the BIA’s precedent in Matter of Mogharrabi, and the regulations establishing a strong presumption of future persecution for those who have been persecuted in the past would also help.

Hope tends to draw people. Hostility and bias understandably tend to repel them. As long as we have a U.S. Immigration Court that tolerates, and even aids, abets, and encourages, some biased, anti-asylum, unprofessional judges in the “Jeff Sessions mode” who deny asylum at rates exceeding 90%, it will lack credibility.

Without credibility and a demonstrable commitment to fairness, impartiality, and due process above the DHS’s and the Administration’s often questionable and other times downright bogus “enforcement priorities,” the system will continue to fail our country, inflict unjustifiable harm and suffering on the most vulnerable among us, and indirectly harm every one of us who believes in Constitutional Government and a firm commitment to respecting human rights. Critical examination of the Government’s positions against a rigorous standard of legality, reasonableness, and fundamenal fairness under the Due Process Clause of the Fifth Amendment to our Constitution is essential to an independent judiciary. It isn’t happening in today’s “captive” Immigration Courts. That’s a national disgrace that must be fixed.

PWS

02-23-19

COURTING DISASTER: NEW AILA REPORT SHREDS DOJ’S “BUILT TO FAIL” IMMIGRATION COURT BACKLOG REDUCTION PROGRAM — “Malicious Incompetence” Turns Tragedy To Travesty! — McKinney, Lynch, Creighton, & Schmidt Do Press Conference Exposing Injustice, Waste, Abuse — Listen To Audio Here!

OUR TEAM:

Jeremy McKinney, Attorney, Greensboro, NC, AILA National Treasurer

Laura Lynch, Senior Policy Counsel, AILA,

Emily Creighton, Deputy Legal Director, American Immigration Council

Paul Wickham Schmidt, Retired U.S. Immigration Judge

Read the AILA Report (with original formatting) at the link below:

19021900

FOIA Reveals EOIR’s Failed Plan for Fixing the Immigration Court Backlog February 21, 2019
Contact: Laura Lynch (llynch@aila.org) 1
On December 19, 2018, AILA and the American Immigration Council obtained a partially redacted memorandum through the Freedom of Information Act (FOIA), entitled the Executive Office for Immigration Review’s (EOIR) Strategic Caseload Reduction Plan (hereinafter “EOIR’s plan”). EOIR’s plan, which was approved by the Deputy Attorney General for the Department of Justice (DOJ) on October 31, 2017,2 states that the overarching goal was “to significantly reduce the case backlog by 2020.” 3 In the following months, DOJ and EOIR implemented the plan by rolling out several policy initiatives, including multiple precedent-setting opinions issued by then-Attorney General (AG) Jeff Sessions.
Contrary to EOIR’s stated goals, the administration’s policies have contributed to an increase in the court backlog which exceeded 820,000 cases at the end of 2018.4 This constitutes a 25 percent increase in the backlog since the introduction of EOIR’s plan.5 For example, the October 2017 memorandum reveals that EOIR warned DOJ that the Department of Homeland Security’s (DHS) potential activation of almost 350,000 low priority cases or cases that were not ready to be adjudicated could balloon the backlog.6 Nonetheless, then-AG Sessions ignored these concerns and issued a decision that essentially stripped immigration judges (IJs) of their ability to administratively close cases and compelled IJs to reopen previously closed cases at Immigrations Customs Enforcement’s (ICE) request.7
The policies EOIR implemented as part of this backlog reduction plan have severely undermined the due process and integrity of the immigration court system. EOIR has placed enormous pressure on IJs by setting strict case quotas on and restricting their ability to manage their dockets more efficiently. This approach treats the complex process of judging like an assembly line and makes it more likely that judges will not give asylum seekers and others appearing before the courts enough time to gather evidence to support their claims. People appearing before the courts will also have less time to find legal counsel, which has been shown to be a critical, if not the single most important factor, in determining whether an asylum seeker is able to prove eligibility for legal protection.
The foundational purpose of any court system must be to ensure its decisions are rendered fairly, consistent with the law and the Constitution’s guarantee of due process. Efforts to improve efficiency are also important but cannot be implemented at the expense of these fundamental principles. EOIR’s plan has not only failed to reduce the backlog but has eroded the court’s ability to ensure due process. Furthermore, EOIR’s plan demonstrates the enormous power DOJ exerts over the immigration court system. Until Congress creates an immigration court that is separate and independent from DOJ, those appearing before the court will be confronted with a flawed system that is severely compromised in its ability to ensure fair and consistent adjudications.
I. Background on EOIR’s Inherently Flawed Structure
The U.S. immigration court system suffers from profound structural problems that have severely eroded both its capacity to deliver just and fair decisions in a timely manner and public confidence in the system
AILA Doc. No. 19021900. (Posted 2/21/19)

itself.8 Unlike other judicial bodies, the immigration courts lack independence from the Executive Branch. The immigration courts are administered by EOIR, which is housed within DOJ – the same agency that prosecutes immigration cases at the federal level. This inherent conflict of interest is made worse by the fact that IJs are not classified as judges but as government attorneys, a classification that fails to recognize the significance of their judicial duties and puts them under the control of the AG, the chief prosecutor in immigration cases. The current administration has taken advantage of the court’s structural flaws, introducing numerous policies — including EOIR’s plan — that dramatically reshape federal immigration law and undermine due process in immigration court proceedings.
II. Policies Identified in EOIR’s Plan
Administrative Closure
Stated Policy Goal: To reduce the case backlog and maximize docket efficiency, EOIR’s plan called for the strengthening of EOIR and DHS interagency cooperation.9 EOIR’s plan advised DOJ that “any burst of case initiation by a DHS component could seriously compromise EOIR’s ability to address its caseload and greatly exacerbate the current state of the backlog.”10
Reality: Despite EOIR’s warning, then-AG Sessions issued a precedent decision in Matter of Castro Tum,11 which contributed to a rise in the case backlog. This decision severely restricts a judge’s ability to schedule and prioritize their cases, otherwise known as “administrative closure” and even compels IJs to reopen previously closed cases at ICE’s request.12
Administrative closure is a procedural tool that IJs and the BIA use to temporarily halt removal proceedings by transferring a case from active to inactive status on a court’s docket. This tool is particularly useful in situations where IJs cannot complete the case until action is taken by USCIS or another DHS component, state courts and other authorities. Prior to the issuance of Matter of Castro Tum, numerous organizations, including the judges themselves, warned DOJ that stripping IJs of the ability to utilize this docket management tool “will result in an enormous increase in our already massive backlog of cases.”13 In fact, an EOIR-commissioned report identified administrative closure as a helpful tool to control the caseload and recommended that EOIR work with DHS to implement a policy to administratively close cases awaiting adjudication in other agencies or courts.14
Nonetheless, the former AG issued Matter of Castro Tum15 sharply curtailing IJs’ ability to administratively close cases. The decision even called for cases that were previously administratively closed cases to be put back on the active immigration court dockets.16 In August 2018, ICE directed its attorneys to file motions to recalendar “all cases that were previously administratively closed…” with limited exceptions—potentially adding a total of 355,835 cases immediately onto the immigration court docket.17 Three months later, ICE had already moved to recalendar 8,000 cases that had previously been administratively closed, contributing to the bloated immigration court case backlog.18 In response, members of Congress sent a letter to DOJ and DHS outlining their concerns about ICE’s plans to recalendar potentially hundreds of thousands of administratively closed cases, further clogging the system and delaying and denying justice to the individuals within it.19
Quotas and Deadlines
Stated Policy Goal: To expedite adjudications, EOIR’s plan calls for the development of caseload
management goals and benchmarks.20
Reality: EOIR imposed unprecedented case completion quotas and deadlines on IJs, that pressure judges to complete cases rapidly at the expense of balanced, well-reasoned judgment.21
2
AILA Doc. No. 19021900. (Posted 2/21/19)

At the time EOIR’s plan was issued, EOIR’s collective bargaining agreement with the National Association of Immigration Judges (NAIJ) prohibited “the use of any type of performance metrics in evaluating an IJ’s performance.”22 Despite opposition from NAIJ,23 DOJ and EOIR imposed case completion quotas and time-based deadlines on IJs, tying their individual performance reviews to the number of cases they complete.24 Among other requirements, IJs must complete 700 removal cases in the next year or risk losing their jobs.25 Disturbingly, DOJ unveiled new software, resembling a “speedometer on a car” employed to track the completion of IJs’ cases.26
Sample Image of “IJ Performance Data Dashboard”
(Source: Vice News)27
AILA, the American Immigration Council, and other legal organizations and scholars oppose the quotas that have been described by the NAIJ as a “death knell for judicial independence.”28 The purported argument for these policies is that it will speed the process up for the judges. However, applying this kind of blunt instrument will compel judges to rush through decisions and may compromise a respondent’s right to due process and a fair hearing. Given that most respondents do not speak English as their primary language, a strict time frame for completion of cases interferes with a judge’s ability to assure that a person’s right to examine and present evidence is respected.29
These policies also impact asylum seekers, who may need more time to gather evidence that is hard to obtain from their countries of origin, as well as unrepresented individuals, who may need more time to obtain an attorney. The Association of Pro Bono Counsel explained that the imposition of case completion quotas and deadlines “will inevitably reduce our ability to provide pro bono representation to immigrants in need of counsel.”30 Unrepresented people often face hurdles in court that can cause case delays, and scholars have concluded that immigrants with attorneys fare better at every stage of the court process.31 Furthermore, these policies compel IJs to rush through decisions may result in errors which will lead to an increase in appeals and federal litigation, further slowing down the process.
Continuances
Stated Policy Goal: To “streamline current immigration proceedings”32 and “process cases more
efficiently,”33 EOIR’s plan called for changes in the use of continuances in immigration court.34
Reality: The restrictions DOJ and EOIR placed on the use of continuances make it far more difficult for immigrants to obtain counsel and interfere with judges’ ability to use their own discretion in each case.
EOIR and DOJ introduced policies that pressure judges to deny more continuances at the expense of due process. In July 2017, the Chief IJ issued a memorandum which pressures IJs to deny multiple continuances, including continuances to find an attorney or for an attorney to prepare for a case.35 Following this policy change, then-AG Sessions issued the precedential decision, Matter of L-A-B-R- et al., interfering with an IJ’s ability to grant continuance requests and introducing procedural hurdles that will also make it harder for people to request and IJs to grant continuances.36
3
AILA Doc. No. 19021900. (Posted 2/21/19)

These policy changes weaken due process protections and contradict the agency’s plan to “improve existing laws and policies.” Continuances represent a critical docketing management tool for IJs and are a necessary means to ensure that due process is afforded in removal proceedings. The number one reason respondents request continuances is to find counsel, who play a critical role in ensuring respondents receive a fair hearing.37 Continuances are particularly important to recent arrivals, vulnerable populations (such as children), and non-English speakers—all of whom have significant difficulties navigating an incredibly complex immigration system. Furthermore, individuals represented by counsel contribute to more efficient court proceedings. NAIJ’s President, Judge A. Ashley Tabaddor, explained, “It is our experience, when noncitizens are represented by competent counsel, Immigration Judges are able to conduct proceedings more expeditiously and resolve cases more quickly.”38
Video Teleconferencing (VTC)
Stated Policy Goal: To expand its adjudicatory capacity, EOIR called for pilot VTC “immigration
adjudication centers.”39
Reality: EOIR expanded the use of VTC for substantive hearings undermining the quality of communication and due process.
A 2017 report commissioned by EOIR concluded that court proceedings by VTC should be limited to “procedural matters” because appearances by VTC may lead to “due process issues.”40 Despite these concerns, EOIR expanded use of VTC for substantive hearings. A total of fifteen IJs currently sit in two immigration adjudication centers—four in Falls Church, Virginia, and eleven in Fort Worth, Texas.41 IJs are currently stationed at these “centers” where they adjudicate cases from around the country from a remote setting.42
For years, legal organizations such as AILA and the American Bar Association (ABA) have opposed use of VTC to conduct in immigration merits hearings, except in matters in which the noncitizen has given consent.43 Technological glitches such as weak connections and bad audio can make it difficult to communicate effectively, and 29 percent of EOIR staff reported that VTC caused meaningful delay.44 Additionally, VTC technology does not provide for the ability to transmit nonverbal cues. Such issues can impact an IJs’ assessment of an individual’s credibility and demeanor, which are significant factors in determining appropriate relief.45 Moreover, use of VTC for immigration hearings also limits the ability for attorneys to consult confidentially with their clients. No matter how high-quality or advanced the technology is that is used during a remote hearing, such a substitute is not equivalent to an in-person hearing and presents significant due process concerns.
IJ Hiring
Stated Policy Goal: In order to increase the IJ corps and reduce the amount of time to hire new
IJs, the former AG introduced a new, streamlined IJ hiring process.46
Reality: Following DOJ’s implementation of the streamlined IJ hiring process, DOJ faced allegations of politicized and discriminatory hiring47 that call into question the fundamental fairness of immigration court decisions.
On its face, the agency “achieved” its goal to quickly hire more IJs, reducing the time it takes to onboard new IJs by 74 percent and increasing the number of IJs on the bench from 338 IJs at the end of FY2017 to 414 IJs by the end of 2018.48 What these statistics do not reveal is that the new plan amended hiring processes to provide political appointees with greater influence in the final selection of IJs.49 In addition to procedural changes, DOJ also made substantive changes to IJ hiring requirements, “over-emphasizing litigation experience to the exclusion of other relevant immigration law experience.”50 Both Senate and
4
AILA Doc. No. 19021900. (Posted 2/21/19)

House Democrats requested an investigation with the DOJ Inspector General (IG) to examine allegations that DOJ has targeted candidates and withdrawn or delayed offers for IJ and BIA positions based on their perceived political or ideological views.51 These allegations are particularly troublesome given the influx in the number of IJs resigning and reports that experienced IJs are “being squeezed out of the system for political reasons.”52
Telephonic Interpreters
Stated Policy Goal: EOIR requested additional funding to support additional IJs on staff and to
improve efficiency.53
Reality: EOIR failed to budget for needed in-person interpreters54 resulting in the use of telephonic interpreters for most hearings, which raises concerns about hearing delays and potential communication issues.55
In April of 2017, an EOIR-commissioned report revealed that 31 percent of court staff reported that telephonic interpreters caused a meaningful delay in their ability to proceed with their daily responsibilities.56 With more than 85 percent of respondents in immigration court relying on use of an interpreter, EOIR’s decision to replace in-person interpreters with telephonic interpreters will undoubtedly make court room procedures less efficient.57 In addition, similar to many of the technological concerns cited with use of VTC, communication issues related to use of remote interpreters can jeopardize an immigrant’s right to a fair day in court. For example, it is impossible for telephonic interpreters to catch non-verbal cues that may determine the meaning of the speech.
III. Conclusion
The immigration court system is charged with ensuring that individuals appearing before the court receives a fair hearing and full review of their case consistent with the rule of law and fundamental due process. Instead of employing policies that propel the court toward these goals, the administration’s plan relies on policies that compromise due process. IJs responsible for adjudicating removal cases are being pressured to render decisions at a break-neck pace. By some accounts “morale has never, ever been lower” among IJs and their staff.58 Moreover, since the introduction of EOIR’s plan, the number of cases pending in the immigration courts has increased 25 percent (from 655,932 on 9/31/17 to 821,726 on 12/31/18). This number does not even account for the 35-day partial government shutdown that cancelled approximately 60,000 hearings while DHS continued carrying out enforcement actions.59 Congress must conduct rigorous oversight into the administration’s policies that have eroded the court’s ability to ensure that decisions are rendered fairly, consistent with the law and the Constitution’s guarantee of due process. But oversight is not enough. In order protect and advance America’s core values of fairness and equality, the immigration court must be restructured outside of the control of DOJ, in the form of an independent Article I court.60
900,000 800,000 700,000 600,000 500,000 400,000 300,000 200,000 100,000
0
792,738 821,726
655,932 521,416
460,021 430,095
356,246
PENDING IMMIGRATION CASES
EOIR Pending Cases
5
Pending cases equals removal, deportation, exclusion, asylum-only, and AILA Doc. No. w1it9hh0o2ld1in9g0o0nl.y. (Po
Source: Department of Justice
sted 2/21/19)

1 For more information, contact AILA Senior Policy Counsel Laura Lynch at (202) 507-7627 or llynch@aila.org.
2 *An earlier version of this policy brief, dated February 19, 2019, incorrectly stated that the memo was signed on October 17, 2017. This typo has been corrected. FOIA Response, see pg. 9.
3 On December 5, 2017, EOIR publicly issued a backgrounder for the EOIR Strategic Caseload Reduction Plan. U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017.
4 U.S. Department of Justice, EOIR Adjudication Statistics, Pending Cases, (Dec. 31, 2018). The over 820,000 cases does not account for the 35-day partial government shutdown that cancelled approximately 60,000 immigration court hearings while at the same time, DHS continued carrying out enforcement actions, Associated Press, Partial shutdown delayed 60,000 immigration court hearings, Feb. 8, 2019.
5 U.S. Department of Justice, Adjudication Statistics, Pending Cases, Dec. 31, 2018.
6 FOIA Response, see pg. 6.
7 Jason Boyd, The Hill, “8,000 new ways the Trump administration is undermining immigration court independence,” Aug. 19, 2018.
8 ABA Commission on Immigration, Reforming the Immigration System, Proposals to Promote the Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases (2010).
9 FOIA Response, see pg. 6. See also U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017.
10 FOIA Response, see pg. 6.
11 Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).
12 Id.
13 NAIJ Letter to then-Attorney General Sessions, Jan. 30, 2018.
14 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017, pg. 26, [hereinafter “Booz Allen Report”].
15 Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).
16 Id.
17 ICE Provides Guidance to OPLA Attorneys on Administrative Closure Following Matter of Castro Tum, June 15, 2018.
18 Hamed Aleaziz, Buzzfeed News, “The Trump Administration is Seeking to Restart Thousands of Closed Deportation Cases,” Aug. 15, 2018.
19 Congressional Letter Requesting Information Regarding Initiative to Recalendar Administratively Closed Cases, Sept. 13, 2018.
20 FOIA Response, see pg. 5.
21 Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018.
22 FOIA Response, see pg. 5.
23 Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018.
24 FOIA Response, pg. 5. See also Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018; See also Imposing Quotas on Immigration Judges will Exacerbate the Case Backlog at Immigration Courts, NAIJ, Jan. 31, 2018. See also Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018.
25 See Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018.
26 C-SPAN, Federal Immigration Court System, Sept. 21, 2018. (“[t]his past week or so, they [EOIR] unveiled what’s called the IJ dashboard…this mechanism on your computer every morning that looks like a speedometer on a car… The goal is for you to be green but of course you see all of these reds in front of you and there is a lot of anxiety attached to that.” NAIJ President, Judge A. Ashley Tabaddor).
27 Ani Ucar, Vice News, “Leaked Report Shows the Utter Dysfunction of Baltimore’s Immigration Court,” Oct. 3, 2018.
28 AILA and the American Immigration Council Statement, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018. See also NAIJ, Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges (October 2017).
29 INA §240(b)(4)(B) requires that a respondent be given a “reasonable opportunity” to examine and present evidence.
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AILA Doc. No. 19021900. (Posted 2/21/19)

30 Association of Pro Bono Counsel (APBCo), Letter to Congress IJ Quotas, Oct. 26, 2017.
31 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court (2016).
32 U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017, pg. 2.
33 FOIA Response, pg. 8.
34 FOIA Response, pgs. 7-8.
35 U.S. Department of Justice, Operating Policies and Procedures Memorandum 17-01: Continuances, July 31, 2017. 36 Matter of L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018).
37 GAO Report, 17-438, Immigration Courts, Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges, (June 2017).
38 Sen. Mazie Hirono, Written Questions for the Record, U.S. Senate Committee on the Judiciary, Apr. 18, 2018.
39 FOIA Response, pg. 3.
40 Booz Allen Report, pg. 23.
41 U.S. Department of Justice, EOIR Immigration Court Listings, Feb. 2019.
42 Katie Shepherd, American Immigration Council, The Judicial Black Sites the Government Created to Speed Up Deportations, Jan. 7, 2019.
43 AILA Comments on ACUS Immigration Removal Adjudications Report, May 3, 2012; ABA Letter to ACUS, Feb. 17, 2012.
44 Booz Allen Report, pg. 23.
45 An EOIR commissioned report suggested limiting use of VTC to procedural matters only because it is difficult for judges to analyze eye contact, nonverbal forms of communication, and body language over VTC. Booz Allen Report, pg. 23.
46 FOIA Response, pg. 3.
47 Priscilla Alvarez, The Atlantic, Jeff Sessions is Quietly Transforming the Nation’s Immigration Courts, Oct. 17, 2018.
48 U.S. Department of Justice, EOIR Adjudication Statistic, IJ Hiring, (Jan. 2019).
49 U.S. Department of Justice, EOIR Announces Largest Ever Immigration Judge Investiture, Sept. 28, 2018; Document Obtained via FOIA by Human Rights First, Memorandum for the Attorney General, Immigration Judge Hiring Process, Apr. 4, 2017.
50 Strengthening and Reforming America’s Immigration Court System, Hearing Before Subcommittee on Border Security and Immigration, of the Senate Committee on the Judiciary, 115th Cong. 5 (2018) (A. Ashley Tabaddor, President, NAIJ), See also Questions for the Record.
51 Senate and House Democrats Request IG Investigation of Illegal Hiring Allegations at DOJ, May 8, 2018. Problematic hiring practices are not new for this agency. Over a decade ago, the IG and the Office of Professional Responsibility revealed that then-Attorney General Alberto Gonzales utilized political and ideological considerations in the hiring of IJ and BIA candidates. U.S Department of Justice IG Report, (2008).
52 Hamed Aleaziz, BuzzFeed News, Being an Immigration Judge Was Their Dream. Under Trump, It Became Untenable, Feb. 13, 2019.
53 FOIA Response, pg. 3.
54 NAIJ Letter to Senators, Government Shutdown, Jan. 9, 2019.
55 Id.
56 Booz Allen Report, pg. 25.
57 Laura Abel, Brennan Center For Justice, Language Access in Immigration Courts, (2010).
58 Hamed Aleaziz, Buzzfeed News, “The Trump Administration is Seeking to Restart Thousands of Closed Deportation Cases,” Aug. 15, 2018.
59 Associated Press, Partial shutdown delayed 60,000 immigration court hearings, Feb. 8, 2019.
60 AILA Statement, The Need for an Independent Immigration Court Grows More Urgent as DOJ Imposes Quotas on Immigration Judges, Oct. 1, 2018. See also the NAIJ letter that joins AILA, the ABA, the Federal Bar Association, the American Adjudicature Society, and numerous other organizations endorsing the concept of an Article I immigration court. NAIJ Letter, Endorses Proposal for Article I Court, Mar. 15, 2018.
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Here’s the link to the audio:

https://www.aila.org/infonet/aila-press-call-on-eoir-memo-obtained-via-foia

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Here’s “simul-coverage” from LA Times star reporter Molly O’Toole:

https://www.latimes.com/politics/la-na-pol-immigration-court-backlog-worsens-20190221-story.html

The Trump administration’s controversial plan to shrink the ballooning backlog of immigration cases by pushing judges to hear more cases has failed, according to the latest data, with the average wait for an immigration hearing now more than two years.

Since October 2017, when the Justice Department approved a plan aimed at reducing the backlog in immigration court, the pending caseload has grown by more than 26%, from 655,932 cases to just shy of 830,000, according to Syracuse University’s Transactional Access Records Clearinghouse, which tracks data from immigration courts.

Even that figure likely understates the backlog because it doesn’t include the impact of the 35-day government shutdown in December and January. Because the system’s roughly 400 immigration judges were furloughed during the shutdown, some 60,000 hearings were canceled. Thousands were rescheduled, adding to the already long wait times.

The administration “has not only failed to reduce the backlog, but has eroded the court’s ability to ensure due process” by pressuring judges to rule “at a breakneck pace” on whether an immigrant should be removed from the United States, the American Immigration Lawyers Assn. — a nonprofit organization of more than 15,000 immigration attorneys and law professors — said in a statement.

When the Justice Department’s Executive Office of Immigration Review, which administers immigration courts, released its plan, officials described it as a “comprehensive strategy for significantly reducing the caseload by 2020,” according to a partially redacted copy of an October 2017 memo obtained by the immigration lawyers group through a Freedom of Information Act request.

“The size of EOIR’s pending caseload will not reverse itself overnight,” the memo said, but by fully implementing the strategy, the office can “realistically expect not only a reversal of the growth of the caseload, but a significant reduction in it.”

Instead, the average wait has grown by a month from January alone, to 746 days — ironically extending the stay of thousands of migrants whom the administration might want to deport from the United States. The Justice Department declined to immediately comment on the growth of the backlog.

The number of pending immigration cases has risen dramatically in recent years, doubling from less than 300,000 in 2011 to 650,000 by December 2017, the end of Trump’s first year in office, according to the Justice Department.

The Trump administration has blamed the ballooning backlog on President Obama’s immigration policies, saying that “policy changes in recent years have slowed down the adjudication of existing cases and incentivized further illegal immigration that led to new cases.”

Administration officials have pointed to Obama’s effort to focus deportation on immigrants with serious criminal records and protecting certain immigrants known as Dreamers who were brought to the U.S. as children as examples of policies that have provided incentives for illegal border crossings.

The administration’s plan to reverse the backlog included a number of controversial steps.

One move restricted the ability of immigration judges to schedule and set priorities for their cases under a process known as “administrative closure.” That change compelled judges to reopen thousands of cases that had been deemed low priority and had been closed. Within three months of the memo, Immigration and Customs Enforcement had moved to reschedule 8,000 cases, prompting concern from lawmakers, according to the immigration lawyers association. Potentially, as many as 350,000 cases ultimately could be added back onto the court dockets.

The administration’s plan also tied immigration judges’ individual performance reviews to the number of cases they complete, calling for them to finish 700 removal cases in the next year.

In contrast to regular courts, immigration judges are not independent; they’re part of the Justice Department. Because of that, the attorney general is both the chief prosecutor in immigration cases and the ultimate boss of the judges, who are classified as government attorneys.

The National Assn. of Immigration Judges, as well as the immigration lawyers association and other groups, have long called for Congress to end what they see as a built-in conflict of interest and create an immigration court separate from the Justice Department.

“As long as we continue to allow the court to be used as a law enforcement tool,” said Ashley Tabaddor, president of the National Assn. of Immigration Judges, “you’re going to get these kinds of backlogs and inefficiencies.”

Any speedup that may have resulted from the imposition of quotas on the judges has been overtaken by the administration’s stepped-up enforcement efforts, which have pushed thousands of new cases into the system.

Stepped-up enforcement without a corresponding increase in judicial resources provides the main reason the backlog has gone up so dramatically, said Stephen Legomsky, Homeland Security’s chief counsel for immigration from 2011 to 2013.

“Immediately upon taking office, President Trump essentially advised Border Patrol agents and ICE officers that they were to begin removal proceedings against anyone they encountered that they suspected of being undocumented, without sufficiently increasing resources for immigration judges,” Legomsky said.

Under previous administrations, “the thinking was, ‘Let’s not spend our limited resources on people who are about to get legal status,’” he said, “Taking that discretion away dramatically increased the caseload.”

Some officials warned that could happen when the effort to curtail the backlog began.

“Any burst of case initiation,” by Homeland Security “could seriously compromise” the Justice Department’s “ability to address its caseload and greatly exacerbate the current state of the backlog,” the acting director of the immigration review office wrote in the October memo to Deputy Atty. Gen. Rod Rosenstein.

The quota effort could also prevent attorneys from providing representation to immigrants, according to the Assn. of Pro Bono Counsel, which represents lawyers who handle cases free of charge for the poor.

Whether immigrants have legal representation makes a huge difference in the outcome of cases: Between October 2000 and November 2018, about 82% of people in immigration court without attorneys were either ordered deported or gave up on their cases and left the country voluntarily, while only 31% of those with lawyers were deported or left.

The administration has succeeded in speeding the hiring of new immigration judges by 74%. The number of immigration judges has grown from 338 when the plan was introduced to 414 by the end of 2018.

Lawmakers have raised concerns that some of those new hires have been politically motivated. In May, House Democrats requested an investigation by the Justice Department Inspector General’s office into allegations that candidates have been chosen or rejected for perceived ideological views.

“The current administration has taken advantage of the court’s structural flaws,” the immigration lawyers association wrote, “introducing numerous policies … that dramatically reshape federal immigration law and undermine due process in immigration court proceedings.”

***********************************************

My Takeaways:

The DOJ politicos made the already bad situation immeasurably worse;
At no time did any of those supposedly “in charge” seriously consider taking measures that could have promoted Due Process and fundamental fairness in a troubled system whose sole function was to insure and protect these Constitutional requirements;
Sessions was warned about the severe adverse consequences of eliminating “administrative closure” by EOIR, but went ahead with his preconceived “White Nationalist” agenda, based on bias, not law;
Deputy Attorney General Rod Rosenstein, who signed off on this monstrosity, is no “hero” just because he stood up to Trump on the Mueller investigation; he’s just another “go along to get along,” like the rest of the Trump DOJ political appointees (with the possible exception of FBI Director Chris Wray);
No sitting judge, indeed no real “stakeholder,” was consulted about these “designed to fail” measures;
The placement of what purports to be a “court system” dedicated to Due Process within the Justice Department is preposterous;
Congress, which created this parody of justice, and the Article III Courts who have failed to “just say no” to all removal orders produced in this “Due Process Free Zone” must share the blame for allowing this Constitutionally untenable situation to continue;
Once again, the victims of the Trump Administration’s “malicious incompetence” are being punished while the “perpetrators” suffer few, if any, consequences.

PWS

02-21-19

******************************

UPDATE: Molly’s article was the “front page lead” in today’s print edition of the LA Times.

https://enewspaper.latimes.com/infinity/latimes/default.aspx?pubid=50435180-e58e-48b5-8e0c-236bf740270e

Gotta give the crew at DOJ/EOIR HQ credit for screwing this up so royally that it’s now off the “back pages” and into the headlines where it belongs. You couldn’t buy publicity like this!

First EOIR Director David “No News Is Good News” Milhollan must be rolling over in his grave right now. And his “General Counsel/Chief Flackie,” my friend and former BIA Appellate Judge Gerald S. “No Comment/We Don’t Track That Statistic” Hurwitz must be watching all of this with amusement and bemusement from his retirement perch. Just goes to support the “Milhollan/Hurwitz Doctrine” that “only bad things can happen once they know you exist.”

PWS

02-22-19

U.S. IMMIGRATION COURTS: FEINBLOOM, STEVENS, & SCHMIDT TAKE CASE FOR ARTICLE I IMMIGRATION COURT TO FBA’S 2019 CIVIL RIGHTS ENTOUFFEE IN NEW ORLEANS, LA, FEB. 16, 2019

“Injustice Anywhere is a Threat to Justice Everywhere. . . . Whatever Affects One Directly, Affects All Indirectly.”

Dr. Martin Luther King, Jr.

Letters From the Birmingham Jail

New Orleans– Appearing before the Federal Bar Association’s 2019 Civil Rights Entouffee, Attorney Jeffrey Feinbloom of the FBA Civil Rights Section, FBA Immigration Section Chair Elizabeth “Betty” Stevens, and I made a powerful pitch to assembled Civil Rights Attorneys for their support for an Article I United States Immigration Court.

Our panel emphasized that the current Immigration Courts under the Executive Office for Immigration Review (“EOIR”), U.S. Department of Justice are a “failed system” threatening everyone’s civil rights. Notwithstanding more Immigration Judges, these “courts” have continued to build backlog at an astonishing and accelerating rate, now topping 1.1 million pending cases following the Government shutdown.

Worse yet, they have essentially become a “hostile environment” for migrants, their attorneys, and sometimes the Immigration Judges and court staff themselves. They also are an impediment to realistic, professional immigration enforcement by DHS. Perhaps worst of all, due process of law has become the apparent enemy of DOJ and EOIR, rather than the objective.

The only way out of this mess is the establishment of an independent Article I Immigration Court, administered in a professional and apolitical manner by sitting judges, not politicized bureaucrats in Washington. Section Chair Betty Stevens and other Section members have helped develop a non-partisan bill to create an Article I Court. We urge everyone to ask their Congressional representatives to make Immigration Court reform an urgent national priority.

Schmidt’s Five Points On Why U.S. immigration Courts Are Unlike Any Other Court System in America

Judges are selected, directed, and “supervised” by the Attorney General, the chief prosecutor;
There is no right to appointed counsel, so young children and others without any understanding of the U.S. legal system, often in detention, are forced to “represent themselves” in life or death cases against experienced ICE Counsel;
The chief prosecutor, the Attorney General, can change any individual case result that he doesn’t like, and rewrite immigration law in the DHS’s favor through “certified precedents;”
There is a 1.1 million case backlog, resulting largely from “Aimless Docket Reshuffling” by the DOJ that continues to grow, despite an increase in judges, without any realistic plan for reducing it;
So-called “civil immigration detention” can be used by the Government to limit representation, and for coercion and deterrence of migrants with little or no effective judicial recourse in many cases.

PWS

02-21-19

AMERICAN MORASS: Trump Administration’s Breathtaking “Malicious Incompetence” Masks True Extent Of Immigration Court Disaster, Makes Accountability Impossible – See The Latest From TRAC!

==========================================
Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASE

The latest available data from the Immigrant Court indicates that as of February 1, 2019 the court is still playing catch up in the aftermath of the five-week partial government shutdown. It is therefore still too early to get an accurate reading of just how much larger the backlog has grown, or how much longer court delays will be before canceled hearings can be rescheduled.

Available data thus far indicate that somewhere between 80,051 and 94,115 hearings may have been cancelled. However, many entries for scheduled hearings that weren’t held have yet to be marked as canceled in the court’s records leaving some uncertainty in the final tally.

Another troubling indicator of how far court staff are behind is that relatively few new filings were recorded since the shutdown began. Even based on these albeit incomplete records, the backlog has already grown to 829,608. But until new filings are recorded, any new DHS actions seeking removal orders aren’t reflected in this backlog count. After that, huge volumes of hearings will need to be rescheduled. Only then will a proper accounting of the full impact of the shutdown be possible.

For more details on these preliminary figures, see:

https://trac.syr.edu/immigration/reports/546/

In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through January 2019. For an index to the full list of TRAC’s immigration tools go to:

https://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563

*************************************************

Time for some meaningful House Oversight of this national disgrace! Any DOJ witness who tries to blame this largely self-created disaster on migrants, their lawyers, Immigration Judges, or court staff, or who claims the solution is slashing rights, more detention, or making judges “pedal faster” should be referred for prosecution for lying to Congress under oath!

It also would be a good idea to get some folks like Susan Long and David Burnham from TRAC, the Center for Migration Studies, AILA, Human Rights First, the Heartland Alliance, the Women’s Refugee Committee, ACLU, and the ABA in to inform Congress as to how the DOJ and EOIR have been manipulating and hiding (perhaps even intentionally falsifying) “statistics” to portray a false White Nationalist anti-immigrant restrictionist narrative developed for Trump by Miller, Sessions, and Nielsen, but likely to continue under Barr.

Barr probably wants a “real job” and at least some of his reputation back after he’s finished with his stint as A.G./Trump Legal Apologist. So, his incentive not to perjure himself in front of Congress is probably greater than for some of the other Trump enablers who are used to basically “getting away with murder” with non-existent GOP oversight over the past two years.

Even if Congress and the law don’t hold these folks accountable for their wanton destruction of American institutions, history will. So, it’s important to make the record for the future. “We are all witnesses.”

PWS

02-19-19

“SIMPLY BRILLIANT” — Retired U.S. Immigration Judge Carol King Tells Us All We Need To Know About The Deplorable State Of EOIR & Practice In The Largely “Due Process Free” Zone Of Today’s Immigration Courts In Her Keynote Address To The AILA Northwest Regional Immigration Law Conference!

KEYNOTE SPEECH

I.
KEYNOTE: AILA NORTHWEST REGIONAL IMMIGRATION LAW CONFERENCE February 14, 2019
Seattle, Washington
PRACTICING IN PERILOUS TIMES
INTRODUCTION: Practicing in Perilous Times a.What does it mean to be PRACTICING IN
PERILOUS TIMES? Is this time really so
different? b.ALWAYS:
i. You have ALWAYS worked with the most vulnerable clients
ii.You have ALWAYS taken in stories of trauma, persecution and grief in the normal course of your work
iii.You have ALWAYS had an uphill battle obtaining the relief to which your clients are entitled, because you operate in a system that is broken and often oblivious to their suffering.
c.YOU PERSISTED:
i. But you PERSISTED on behalf of your
clients because you had the skills and the courage to fight those battles on a relatively consistent, if not level, playing field.
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ii.You PERSISTED because you had for inspiration the resilience and courage and dreams of your immigrant clients
iii.You PERSISTED because, maybe not as often as you’d like, but at least occasionally, you had the satisfaction of helping someone achieve a second chance in life – a chance to start over in the country they chose as home, to work and contribute in their chosen manner, to be with their families, to enjoy a life free of persecution or torture or crushing poverty.
d.NOW
i. NOW the playing field tilts more
drastically every day and the battles are so bloody and so mean-spirited and the results so frequently demoralizing and unfair and lacking in due process, that it has become really difficult to carry on, to keep on persisting.
ii.NOW you’re not only experiencing stories of past trauma, but you are witnessing, in real time, the traumatization of your clients as this administration literally terrorizes them with its rhetoric and actions.
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iii.NOW you see decades of hard-won development of protections for your clients swept away in a single day and with a single pen stroke.
iv.In my more than 30 years both practicing as an immigration attorney and sitting as an immigration judge, I don’t believe there has been a more difficult or perilous time to practice in this area.
1.What you are all doing at this time in history is really, really difficult
2.It takes an inordinate amount of dedication, courage and vision.
3.I am in awe of each and every one of you.
II. IMMIGRATION COURT UPDATE a.I’ve been asked to give today an
IMMIGRATION COURT UPDATE.
i. That’s a bit of a difficult task, since
you are the experts on what you’re seeing every day in court, and since I have been off the bench and somewhat “out of the inside loop” for two years, and much has occurred since then. Despite that, I’m going to venture an opinion, and that is that the Immigration Court system itself is also
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in serious peril, as is its ability to provide due process of law to those who appear before it.
ii.I want to focus on a few issues that I think are extremely important to protecting due process in our court system.
b.ADMINISTRATIVE ISSUES resulting in a Crushing caseload: The Immigration Court has been functioning under a crushing caseload and with entirely inadequate resources for as long as I worked there.
i. That caseload is now growing exponentially for a variety of reasons (the last statistic I heard was that, on average, individual Immigration Judges have a pending caseload of over 2500 cases). What are some of the reasons for this exponential growth?:
1.Priorities: This administration has absolutely refused to set any kind of meaningful priorities for prosecution of cases. The policy is to prosecute every issue in every possible case to the max. There is no recognition that limitations on resources require prosecutorial discretion.
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2.Erosion of case management tools:
a.The current management of EOIR has eroded the case management tools that in the past allowed judges to juggle a massive caseload and prioritize the cases that were ripe for adjudication. First, administrative closure was taken away by AG Sessions, with a suggestion that such situations could be dealt with by continuances. Then, once that was in place, EOIR openly discouraged continuances, requiring judges to issue a long- form written decision justifying each granted continuance. No such decision is required to deny a continuance. In addition to eliminating essential tools for managing a massive caseload, incentivizing a particular outcome in decision-making undermines the independence of the court and due process
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and has no place in a court
system!
3.Aftermath of Gov’t Shut Down:
a. My contacts are with the SF
Immigration Court, not Seattle, but I think some generalizations can be made: First, there was ZERO GUIDANCE from EOIR management on how to deal with the specifics of the shut-down. Thus, each court administrator decided how to deal with, for instance, filings during the shut down, and the resetting of cases.
b.In San Francisco, all mail was opened and date stamped, then set for a 10 day call up to begin the day the government reopened. They received 10,000 filings during the 5 week shutdown. None of them could be entered into the system. They all came up for call up on Feb 7, 2019.
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Thus, the SF court, which is one of the most efficient and well-run courts, is overwhelmed still by the remnants of the shut down.
c. In addition, when the SF Court Administrator asked EOIR for a 3 day “recovery period” after the shutdown, the request was denied and they were told that all courtrooms had to be in full swing as of the morning of the first day the government reopened. ACCs did not have their files, court files had not been pulled for Master Calendar and Individual Calendar hearings. At that point 10,000 filings, including those filed before the two week filing deadline for cases scheduled that morning, were in a pile waiting to be entered into the court
7

system and were
inaccessible to the judges. d.The only support offered
from EOIR was unlimited overtime for staff, so some staff has now been consistently working 20 hours a week overtime to try to catch up on the aftermath of the shutdown.
e.As an example of the delays engendered by the shutdown, in San Francisco 67 full Master Calendars had to be cancelled. As new cases pour in and add to the backlog, all these cases have to be reset to new Master Calendars, not to mention hundreds of individual cases which must now be reset.
4.Severe shortage in resources: As always, the Immigration Court is operating under a severe shortage of resources. As an example, in San Francisco, by this summer they will have a full complement of 27
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Judges and all courtrooms will be full, but the court is already down 30 Legal Assistants from what they should have and all Legal Assistants are carrying 2 judges’ caseloads, a nearly impossible task even in a short-term emergency situation. Because Legal Assistant hiring falls far behind even IJ hiring, by summer all the Legal Assistants will have to carry 3 judges’ caseloads.
c.LEGAL AND INDEPENDENCE ISSUES
i. I talked about incentivizing denying
continuances. But there are even more direct ways in which this administration has undermined the independence of the Immigration Court. When the Attorney General of the United States goes to a conference of Immigration Judges and specifically tells judges that entire categories of asylum cases should “generally” be denied (as AG Sessions did in the summer of 2018), this is a direct and blatant attack on the decisional independence of the Immigration Judges.
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ii.Matter of A-B- was only one in a series of decisions in which the current Department of Justice is inappropriately using the AG Certification Process in an attempt to roll back decades of painstaking development of the law, developments which had finally brought us into closer compliance with our international obligations to protect true refugees. This tactic has gone hand in hand with vicious attacks on immigrants in the press and disregard of their true motives for coming to the United States.
iii.Add to all of this the jurisdictional issues raised by the Supreme Court in Pereira v. Sessions and the Immigration Court system is in severe peril. It seems to me extremely clear that the legal conclusion in that case compels a finding that the vast majority of Notices to Appear filed with the court during the entire time I have been involved in immigration law are invalid and incapable of conferring jurisdiction on the Immigration Court. As I’m sure you know, a panel of the 9th Circuit
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recently held otherwise, but with very shaky reasoning. If eventually all these NTA’s are declared invalid, I have grave concerns for the impact that will have on the Immigration Court system, and even on tens of thousands of immigrants who have been granted relief by Immigration Courts over the last 40 years.
iv.The final perilous factor I want to talk about today is the pressure on judges to complete an overwhelming number of cases in a very short period of time, probably the most dangerous threat to due process of all.
1.Immigration Judges have, for the first time, been mandated to complete 700 cases per year. In the past we had “aspirational goals” to complete certain cases by a certain time, and that in and of itself, created a lot of pressure and fear among judges.
2.But now, not only have the case completion goals become mandatory, they have been tied to the Immigration Judge’s Performance Evaluations. If you
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look at the ABA’s guidelines for evaluation of judges, you will see that completing a particular number of cases is absolutely inappropriate as a factor to evaluate judges. Judges are evaluated by their peers and party/ stakeholders on criteria such as legal reasoning ability; knowledge of the law; knowledge of rules of procedure and evidence; keeping up on current developments; Integrity and Impartiality; communication skills; professionalism and temperament; administrative capacity (including managing a docket efficiently and effectively) – while this includes promptness in deciding cases, the commentary makes clear that these are aspirational goals, that some factors affecting promptness of decisions may be outside the judges’ control and that the purpose of such an evaluation is primarily for the individual improvement of each judge and
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should never be tied to
disciplinary action.
3.Now we have a situation in the Immigration Court in which the judges’ continued employment depends on their ability to keep up with an artificial and unrealistic case completion mandate, which requires the completion of approximately three full hearings a day, leaving complex asylum and cancellation hearings lucky to be scheduled for 90 minutes, where such hearings used to be scheduled for a full morning or afternoon, and might take even more than one such session.
4.This is something that requires vigilance by all of us. Knowing that the judges are under an incredible amount of pressure, and even sympathizing with that situation (please do!), does not relieve us of zealously representing our clients. What does that mean in this milieu? It means being super prepared. It means being super efficient in the presentation of your cases. It
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means trying to work out stipulations with ICE counsel as to issues, admissibility of evidence, the need for cross examination (anything you can think of to make the hearing go faster for the judge), it means briefing every or almost every case and making sure all arguments are addressed in writing in case time is not given for closing arguments or opening statements. And then, after you have done the most thorough, efficient, and complete job you can at presenting your case, if the time given is not sufficient and the judge is cutting off the presentation of the case, it means standing up on the record and using the words “denial of due process”.
III. CONCLUSION:
a.What does all this mean as we struggle to
deal with the peril in which we find ourselves?
i. As a community, we must continue to advocate for a more independent
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court, one which exists outside of any prosecutorial agency such as the DOJ.
1.For years we had mostly small incursions into decisional independence, most often when EOIR management made what they believed to be an “administrative” decision which inadvertently encroached on decisional independence
2.But, as judges, we saw the potential and feared that more intentional and direct incursions could be made under the current system. Therefore, at peril to our own jobs, we chose to advocate for an independent court under Article 1 of the United States Constitution. Since then, the Federal Bar Association, AILA and others have joined us in this call.
3.We are now seeing the types of direct and intentional attacks on the independence of the Immigration Judges that we mostly only feared before. Therefore, we must redouble our efforts to attain
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independent status for the
Immigration Court.
ii.As individuals, as I said in the
beginning, we are facing truly perilous times, and we can’t underestimate the impact that has on our health, our ability to stay in the work for the long term, and our competence as attorneys.
1.It bears saying that, in such perilous times, it is terribly easy to feel that there is no time to rest, no time to take a break, spend time with family, engage in self- care such as meditation or exercise or dancing or surfing or whatever floats your boat and helps you renew your stamina. It’s so easy to feel that our clients are suffering so badly that we ourselves have no right or ability to rest.
2.A young lawyer said to me recently, “We start out in this work feeling like warriors; but we wind up barely hanging on.” That got me thinking what it would mean to approach our work with the heart
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of a warrior. The characteristics of warriors are:
a.Persistence: not accepting what seems to be inevitable. We didn’t accept it when years of “settled law” seemed to preclude effective use of Particular Social Group in asylum cases, and we must not accept either when the AG “grabs” cases in order to undermine decades of patient and attentive legal development, as he did in Matter of A-B-. Likewise, we must not accept having our cases rushed beyond all semblance of due process.
b.Preparation: Warriors prepare themselves for battle – as we are doing now, and do regularly, by educating ourselves, learning from each other, strategizing and skills training. As warriors, we also prepare our cases as well as ourselves, and do so zealously and to the best of our ability.
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c.Dedication: As warriors, we must consistently ask ourselves – does this work bring me joy? If not, you will not be able to fully dedicate yourself to it for the long term. Because we believe in the work we are doing and the people we are representing, we WANT to give of ourselves 110%. But what does that mean? As part of her preparation for battle, a warrior prepares herself by taking care of body and soul.
I propose to you that in these perilous times, self-care becomes even more essential than it ordinarily is. It HAS to figure in to the 110% that you are giving! Our brains and bodies break down if we remain consistently in fight or flight mode and that effects not only our own happiness and health, but our ability to represent our clients competently and intelligently over a long period of time. Don’t put off this
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aspect of your role as a warrior for your clients. Please don’t wait, as I did, until you are too fundamentally exhausted to implement a self-care plan.
d.Do it now, do it for yourselves, do it for your family, do it for your current and future clients.
3.Thank you
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***********************

Thank you, Carol. Proud to be your colleague in “Our Gang!”

PWS

02-15-19

HEIDI ALTMAN @ HEARTLAND ALLIANCE: How EOIR & Other Trump Toadies Lie & Distort “Statistics” To Support A White Nationalist Immigration Agenda!

https://immigrantjustice.org/sites/default/files/content-type/research-item/documents/2019-01/NIJC-Policy-Brief_Trump-Data-Manipulation_Jan2019.pdf

The Trump Administration’s Manipulation of Data to Perpetuate Anti-Immigrant Policies

The Trump administration regularly manipulates data to support its anti-immigrant agenda. Two weeks after President Trump shut down the federal government because Congress refused to approve funding to build a wall on the southern border, Homeland Security Secretary Kirstjen Nielsen presented a slideshow to the president’s Cabinet that was widely publicized for relying on inaccurate and heavily inflated numbers to create a sense of crisis in the border region.1 But it has long been a tried and true strategy for this administration’s agencies and government officials to misrepresent facts and figures and implement policy changes intentionally developed to gin up data points that prove a pre-established nativist narrative.

This policy brief describes how the administration has corrupted immigration data to fuel its anti- immigrant policy agenda. Particularly alarming examples include its manipulation of information and data to (I) undermine access to asylum; (II) exacerbate the due process crisis in the immigration courts; and (III) escalate the criminalization of migrants.

I. Crippling Asylum Access, then Touting Low Approval Rates

as Evidence of Fraud

The Trump administration made it nearly impossible for many people to get asylum, and now cites low grant rates to claim there are no legitimate asylum seekers.

The administration’s campaign to close the
border to asylum seekers began almost on
day one. President Trump’s February 2017
Executive Order on border security called for
higher standards for screening asylum
seekers’ fear of return.2 At the border,
Customs and Border Protection (CBP) has
intentionally reduced the processing of
asylum seekers at ports of entry3 and
doubled down on a so-called “metering”
system that numerically limits the number of
asylum seekers processed.4 Within the
immigration court system, Department of
Justice (DOJ) leadership has upended
longstanding case law to make it even more
difficult for survivors of gang-related and domestic violence to establish eligibility for asylum.5Unsurprisingly, these policies have shut off asylum protections for many applicants in need:

January 2019 immigrantjustice.org

under the Trump administration, denial rates for asylum applicants rose from 54.6 percent in fiscal year (FY) 2016 to 60.2 percent in FY 2017 and to 65 percent in FY 2018.6

The president and his Cabinet officials, after imposing such arbitrary obstacles to asylum, now claim that the resulting low asylum grant rates mean that most asylum seekers are here to “game the system,” as Acting Attorney General Matthew Whitaker recently stated after asserting that “only 20 percent of aliens have been granted asylum after a hearing before an immigration judge.”7 In his presidential proclamation attempting to ban certain migrants from asylum eligibility, President Trump stated that “only a fraction” of claimants at the southern border “ultimately qualify for asylum.”8

The fault in the president’s logic is so simple it’s easy to miss: the Trump administration made it nearly impossible for even the most bona fide refugee to obtain asylum, and now claims that applicants’ failures to win protection proves they filed applications for nefarious reasons. The administration is cynically using its own cruel policies to create facts designed to further more cruelty.

II. Distorting Immigration Court Representation and Appearance Data

The administration downplays the access to counsel crisis in our nation’s immigration courts, especially for children, and lies about the prevalence of non-appearance rates in immigration court.

Trump’s appointed officials frequently mislead Congress through incomplete and conflated data that obfuscates the due process crisis playing out every day in U.S. immigration courts. Most frequently, these misrepresentations downplay the critical importance of legal representation in immigration court proceedings and falsely suggest that the majority of immigrants do not appear for their scheduled immigration court hearings.

The DOJ Executive Office for Immigration Review’s (EOIR) own data shows that at least 60 percent of immigrant families in deportation proceedings appear for hearings, a statistic that rockets up to 98 percent when families are represented by counsel who can help them understand the court process.9 Among unaccompanied children, 67.6 percent overall and over 95 percent of minors with legal representation appear for their hearings.10

But in one recent hearing before the Senate Permanent Subcommittee on Investigations of the Homeland Security and Governmental Affairs Committee, EOIR Director James McHenry put forward several problematic representations of immigration statistics that

2

subverted this reality.11 At one point, McHenry cited statistics from a program whose scope is limited to providing children’s parents or sponsors a basic legal orientation to argue that providing full legal representation is ineffective in ensuring children’s appearance in court.12During the same hearing, McHenry also blatantly misrepresented court appearance data, testifying without evidence that children in immigration court proceedings appear in court only 53 percent of the time.13

The president’s mischaracterization of this data has been even further removed from reality, including unsubstantiated claims that immigrants “never show up [to court], it’s like a level of 3 percent. They never show up for the trial.”14

Obfuscation about representation and appearance rates in immigration court is particularly harmful given how powerfully the deck is already stacked against immigrants in deportation proceedings. Although U.S. Immigration and Customs Enforcement (ICE) is represented in each proceeding by its own federal counsel, there is no right to counsel for indigent immigrants who cannot afford private representation. Nationally, only 37 percent of all immigrants and only 14 percent of detained immigrants are represented in their immigration court proceedings.15Representation is a particularly critical due process safeguard in immigration court, where people face life-altering consequences and need an expert in the law by their side to ensure they understand how to comply with complex court processes.16 Immigrants with attorneys are five times more likely to win their cases than those without attorneys.17 For detained immigrants, it can be nearly impossible to even present a case without counsel; those with attorneys are 11 times more likely to be able to seek a defense to deportation.18

III. Increasing Prosecutions to Inflate the Number of So-Called

“Criminal” Immigrants

The administration employs both the criminal justice and deportation systems to target immigrants, using its discretion to increase already sky-high prosecutions of immigrants and subsequently touting increased convictions to demonize immigrants.

The Trump administration is quite literally creating its own crime statistics by making it impossible for asylum seekers to present lawfully at ports and then choosing to prosecute as many people as possible for crossing the border elsewhere to request protection. In April 2017, the DOJ announced it would prioritize the prosecution of migration-related offenses,19a jarring announcement in light of the fact that migration-related prosecutions already constituted more than half of all federal prosecutions when the Trump administration took office.20 A year later, DOJ established a

3

“zero-tolerance” policy, whereby U.S. Attorneys Offices at the southwest border were instructed to prosecute all migrants entering between ports of entry under 8 U.S.C. § 1325, improper entry.21

Zero tolerance led to a spike of prosecutions along the southwest border, with a 30 percent increase from the month prior to the announcement of the policy.22 As Acting Attorney General Matthew Whitaker recently noted, in FY 2018, DOJ charged 85 percent more immigrants with unlawful entry than in FY 2017, and increased felony reentry prosecutions by over 38 percent.23Fueling the zero-tolerance policy was the administration’s concerted blockading of the southern border through illegal turnbacks and so-called “metering” of asylum seekers at ports of entry, both still ongoing, forcing many asylum seekers desperate to reach the safety of the United States to attempt to enter between ports.24

The administration utilizes the statistics resulting from these policies to conflate notions of criminality and immigration status in its policy and rhetoric. ICE routinely touts the high percentage of immigration-related criminal arrests and deportations that involve immigrants who enter outside a port of entry, yet increasingly these statistics reveal the extent to which the administration is cooking the books by driving up the rates of migration-related offenses. Most recently, in ICE’s FY 2018 data release, the agency specifically highlighted arrests of immigrants by “Criminality,” arguing that “the largest percentage of aliens arrested by ICE are convicted criminals (66 percent).” Of the categories of underlying criminal conduct, however, immigration-related offenses ranked as third with 51,249 immigrants.25 Similarly, CBP highlights immigrants convicted of both entry and reentry offenses, with statistics as of August 2018 demonstrating they were the leading type of convictions for so-called “criminal aliens,” representing 41 percent in FY 2017 and 47 percent of all convictions in the first eight months of FY 2018.26 While the administration frames these statistics to argue that migrants have become a greater threat, the story they really tell is of a federal agency that has become obsessed with punishing people for crossing the border.

Conclusion

The use of official government resources to paint groups of people as undesirable or criminal mirrors strategies employed by authoritarian regimes throughout world history who have sought to consolidate power, effectuate anti-democratic agendas, and provide a pretext for persecution. During World War II, the Nazi regime published a list of supposed crimes committed by the Jewish population.27 Russia’s current authoritarian regime regularly employs the criminal justice system to prosecute and convict LGBTQ individuals.28 Scapegoating minorities is one of the time-tested tools for dictators.29

Through data manipulation, the Trump administration is deftly employing the various levers of government to implement inherently flawed policy that criminalizes immigrants, subsequently touting that criminalization to vilify them. Collaterally, the administration manipulates or misrepresents data to impugn immigrants and their families as criminals who are undeserving of protection. The endgame is apparent—to build a foundation to enact policies that erode due process, increase incarceration of communities of color, and strip legal protections from immigrants. Congress and other stakeholders must hold this administration accountable and

4

ensure that its anti-immigrant policies are not justified through the use of data or policy inherently designed to undermine basic human and civil rights.

Acknowledgments

This policy brief was authored by Jose Magaña-Salgado for the National Immigrant Justice Center. NIJC’s Heidi Altman and Tara Tidwell Cullen contributed to the report.

For questions, contact NIJC Director of Policy Heidi Altman at (312) 718-5021 orhaltman@heartlandalliance.org.

Endnotes

1 Philip Bump, “The administration is using heavily inflated numbers to argue for a border wall,” Washington Post, Jan. 4, 2019, https://www.washingtonpost.com/politics/2019/01/04/administration-is-using-heavily-inflated-numbers- argue-border-wall/?utm_term=.c72735337b9c.
2 Border Security and Immigration Enforcement Improvements, Exec. Order No. 13,767, 82 Fed. Reg. 8793, Jan. 25, 2017, https://www.federalregister.gov/documents/2017/01/30/2017-02095/border-security-and-immigration- enforcement-improvements.
3 Hamed Aleaziz, “The Trump Administration is Slowing the Asylum Process to Discourage Applicants, an Official Told Congress,” BuzzFeed, Dec. 17, 2018, https://www.buzzfeednews.com/article/hamedaleaziz/the-trump- administration-is-slowing-the-asylum-process-to.
4 Human Rights First, Refugee Blockade: The Trump Administration’s Obstruction of Asylum Claims at the Border, Dec. 11, 2018, https://www.humanrightsfirst.org/resource/refugee-blockade-trump-administration-s-obstruction- asylum-claims-border.
5 Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), https://www.justice.gov/eoir/page/file/1070866/download. This opinion is currently subject to litigation, with a preliminary, nationwide injunction in place as of December of 2018. Lauren Pearle, “Judge blocks Trump administration efforts to restrict asylum for migrants fleeing domestic and gang violence,” ABC News, Dec. 20, 2018, https://abcnews.go.com/Politics/judge-blocks-trump-administration-efforts- restrict-asylum-migrants/story?id=59913629; Grace, et al., v. Whitaker, No. 18-CV-01853 EGS (D.D.C. Dec. 19, 2018), available at https://www.aclu.org/legal-document/grace-v-whitaker-opinion. See also Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018), https://www.justice.gov/eoir/page/file/1040936/download (undermining the right to an evidentiary hearing for asylum applicants).
6 TRAC Immigration, Asylum Decisions and Denials Jump in 2018, Nov. 29, 2018,http://trac.syr.edu/immigration/reports/539/.
7 Office of Public Affairs, U.S. Department of Justice, Acting Attorney General Matthew Whitaker Delivers Remarks on the Importance of a Lawful Immigration System, Dec. 11, 2018, https://www.justice.gov/opa/speech/acting- attorney-general-matthew-whitaker-delivers-remarks-importance-lawful-immigration. Asylum denials often have life and death consequences for individuals, with deported asylum seekers facing persecution and even death in their home countries. See Jaya Ramji-Nogales , Andrew I. Schoenholtz and Philip G. Schrag, Refugee Roulette, Disparities in Asylum Adjudication and Proposals for Reform, 2009; Sarah Stillman, “When Deportation is a Death Sentence,” The New Yorker, Jan. 15, 2018, https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a- death-sentence (documenting the harms awaiting immigrants deported back to their home countries, including violent deaths).
8 Proclamation No. 9822, 83 Fed. Reg. 57,661, Nov. 15, 2018,https://www.federalregister.gov/documents/2018/11/15/2018-25117/addressing-mass-migration-through-the- southern-border-of-the-united-states.
9 Human Rights First, Myth v. Fact: Immigrant Families’ Appearance Rates in Immigration Court, July 31, 2016,https://www.humanrightsfirst.org/resource/myth-vs-fact-immigrant-families-appearance-rates-immigration-court.
10 American Immigration Council, Children in Immigration Court: Over 95 Percent Represented by an Attorney Appear in Court, May 16, 2016, https://www.americanimmigrationcouncil.org/research/children-immigration-court-over-95- percent-represented-attorney-appear-court.
11 Permanent Subcommittee on Investigations, Homeland Security & Governmental Affairs Committee, U.S. Senate,Oversight of Efforts to Protect Unaccompanied Alien Children from Human Trafficking and Abuse, Aug. 16, 2018,https://www.hsgac.senate.gov/subcommittees/investigations/hearings/oversight-of-efforts-to-protect-unaccompanied- alien-children-from-human-trafficking-and-abuse.

12 Id. (exchange begins at 1:36:40). In this same hearing, Director McHenry also cited an EOIR-produced statistic that the “representation rate for UACs [unaccompanied immigrant children] in proceedings . . . whose proceedings have been pending for over a year is already 75 percent.” By focusing on representation for unaccompanied minors with cases pending for a year or more, Director McHenry excluded representation rates for cases completed in less than a year, namely cases where a judge ordered a minor deported in absentia (e.g. without the minor’s presence in the court) precisely because the minor did not have representation. See Denied a Day in Court: The Government’s Use of In Absentia Removal Orders Against Families Seeking Asylum 15, Catholic Legal Immigration Network, Inc. and the Asylum Seeker Advocacy Project, 2018, https://cliniclegal.org/sites/default/files/Denied-a-Day-in-Court.pdf. Looking at impartial data regarding representation rates provides a more sobering picture; as of November 2018, only 48 percent of unaccompanied minors had representation, regardless of how long their case had been pending. See Juveniles — Immigration Court Deportation Proceedings, TRAC Immigration, Nov. 2018,http://trac.syr.edu/phptools/immigration/juvenile.

13 McHenry Testimony, supra note 11, at 1:47:10.
14 Linda Qiu, “Trump’s Falsehood-Laden Speech on Immigration,” The New York Times, Nov. 1, 2018,https://www.nytimes.com/2018/11/01/us/politics/fact-check-trump-immigration-.html.
15 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016, https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court.
16 Id.
17 Id.
18 Id.
19 Office of the U.S. Attorney General, Memorandum for all Federal Prosecutors, “Renewed Commitment to Criminal Immigration Enforcement,” Apr. 11, 2017, https://www.justice.gov/opa/press-release/file/956841/download.
20 TRAC Immigration, Immigration Prosecutions for December 2016, June 4, 2018,http://trac.syr.edu/tracreports/bulletins/immigration/monthlydec16/fil/; Cristobal Ramon, Federal Prosecutions of Illegal Immigrants, Bipartisan Policy Center, Mar. 27, 2018, https://bipartisanpolicy.org/blog/the-prosecution-pipeline/.
21 Office of the U.S. Attorney General, Memorandum for Federal Prosecutors along Southwest Border, “Zero- Tolerance for Offenses Under 8 U.S.C. § 1325(a),” Apr. 6, 2018, https://www.justice.gov/opa/press- release/file/1049751/download.
22 TRAC Immigration, Criminal Prosecutions for Illegal Border Crossers Jump Sharply in April, June 4, 2018,http://trac.syr.edu/immigration/reports/515/.
23 Office of Public Affairs, U.S. Department of Justice, Acting Attorney General Matthew Whitaker Delivers Remarks on the Importance of a Lawful Immigration System, Dec. 11, 2018, https://www.justice.gov/opa/speech/acting- attorney-general-matthew-whitaker-delivers-remarks-importance-lawful-immigration.
24 Human Rights First, Refugee Blockade: The Trump Administration’s Obstruction of Asylum Claims at the Border, Dec. 11, 2018, https://www.humanrightsfirst.org/resource/refugee-blockade-trump-administration-s-obstruction- asylum-claims-border.
25 U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, Fiscal Year 2018 ICE Enforcement and Removal Operations Report , Dec. 14, 2018,https://www.ice.gov/doclib/about/offices/ero/pdf/eroFY2018Report.pdf.
26 U.S. Customs and Border Protection, U.S. Department of Homeland Security, Criminal Alien Statistics – FY 2018(Oct. 23, 2018), https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/criminal-alien-statistics.
27 Amanda Erickson, “Adolf Hitler also published a list of crimes committed by groups he didn’t like,” The Washington Post, Mar. 2, 2017, https://www.washingtonpost.com/news/worldviews/wp/2017/03/02/adolf-hitler-also-published-a- list-of-crimes-committed-by-groups-he-didnt-like/ (“There’s a reason Trump’s opponents are so worried. This strategy — one designed to single out a particular group of people, suggesting that there’s something particularly sinister about how they behave — was employed to great effect by Adolf Hitler and his allies. In the 1930s, the Nazis used a similar tactic to stir up anger and hatred toward Jews.”).
28 The Council for Global Equality, The Facts on LGBT Rights in Russia, accessed Jan. 2, 2019,www.globalequality.org/component/content/article/1-in-the-news/186-the-facts-on-lgbt-rights-in-russia.
29 Bruce Bueno de Mesquita and Alastair Smith, The Dictator’s Handbook: Why Bad Behavior is Almost Always Good Politics, 2012.

Images from The Noun Project. Credits: Robbe de Clerck, Adrien Coquet, Luis Prado, and SBTS

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It’s time for some House Oversight of the ridiculous mess at EOIR and the lies, fabrications, and intentional distortions that support the restrictionist enforcement agenda of what once purported to be a “court system” but now is a “CINO” (“Court in Name Only”) — an unapologetic adjunct of DHS Enforcement (their “partner” according to the now departed Sessions). Amazingly, it’s actually much worse than the dysfunction that led to the removal of the Immigration Courts from the “Legacy INS’ and establishment of a supposedly “independent” EOIR within DOJ in the first place, in 1983.

Then, I don’t think INS was intentionally falsifying anything or carrying out a political agenda in the Immigration Courts. Honestly, the “Legacy INS’ was simply ethically and administratively incompetent to run a due process court system.

But, to the credit of all involved during the Reagan Administration, including then Commissioner Al Nelson and General Counsel “Iron Mike” Inman, we recognized the problem and acted to solve it. We also saw that a “level playing field” and a more independent Immigration Court would gain credibility with the Article III courts, which would benefit INS enforcement. We even got then Associate Attorney General Rudy Giuliani to endorse the “divestiture program.”

Although the first Director of EOIR, David Milhollan, who was also the BIA Chair, and the first Chief Immigration, Judge William R. Robie, were both stalwart Republicans, neither brooked interference from “Main Justice” with their operations. They were particularly proud and assertive of their independence from INS. Indeed “we’re not INS” became the “mantra” of the “early EOIR.”

Milhollan, having moved EOIR Headquarters across the river to Falls Church, VA more or less hoped that at some point DOJ would forget that EOIR every existed. He occasionally sent a little “excess money downtown” to ensure that the “Main DOJ” and the Attorney General would have only “kind thoughts” about EOIR and would otherwise leave him alone. Up to a certain point, it worked.

Sadly, for all of its original promise and development during its first two decades, the “EOIR Experiment” has turned out to be a disastrous failure. It’s quite painful for those of us who devoted large chunks of our professional lives and emotionally invested in the effort to make EOIR a “real” court.

The idea that a court system can operate independently and provide fairness, impartiality, and due process within the now thoroughly politicized DOJ is simply a non-starter. It’s basically a “return to the Nixon Administration” which is where I came in, with the hope of “learning the ropes” and eventually being able to help in some small way to create “good government” and a better America.

Unfortunately, a divided Congress and an Administration bent on destroying our Constitution and democratic institutions are unwilling and/or unable to put “Eyore” out of its misery. That means that innocent lives will continue to be wrongfully destroyed and Constitutional Due Process mocked until the next generation can put the “malicious incompetence” of Trumpism behind us and advance our nation and the world to a better, fairer, more realistic and inclusive future. That’s what the “New Due Process Army” is all about!

PWS

02-15-19

JUDICIAL BRAIN DRAIN: As Outlaw Administration Attacks Due Process & Attempts To Institutionalize Xenophobic Bias, Experienced, Conscientious U.S. Immigration Judges Head For The Exits – Abandonment Of Scholarship, Fairness, Commitment To Due Process Threatens Entire U.S. Justice System!

https://www.buzzfeednews.com/article/hamedaleaziz/immigration-policy-judge-resign-trump

Hamed Aleaziz reports for BuzzFeed News:

Being An Immigration Judge Was Their Dream. Under Trump, It Became Untenable.

“It has become so emotionally brutal and exhausting that many people I know are leaving or talking about finding an exit strategy,” said one immigration judge. “Morale has never, ever been lower.”

Hamed AleazizBuzzFeed News Reporter

Reporting From

San Francisco, California

Posted on February 13, 2019, at 6:15 p.m. ET

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Constanza Hevia for BuzzFeed News

Former immigration judge Rebecca Jamil in Fremont, California, on Dec. 28, 2018.

SAN FRANCISCO — Rebecca Jamil was sitting in a nondescript hotel ballroom in suburban Virginia when she realized that her dream job — being an immigration judge — was no longer tenable. It was June 11, 2018, and then–attorney general Jeff Sessions, her boss, was speaking to a room packed with immigration judges, running through his list of usual complaints over what was, in his estimation, a broken asylum system.

Toward the end of the speech, Sessions let slip some big news: He had decided whether domestic abuse and gang victims could be granted asylum in the US. Advocates, attorneys, and judges had been waiting months to see what Sessions, who in his role as attorney general had the power to review cases, would do. After all, it would determine the fate of thousands of asylum-seekers, many fleeing dangerous situations in Central America.

Sessions didn’t reveal to the room the details of his ruling but Jamil, based in San Francisco since she was appointed in 2016, learned later that day that the attorney general had decided to dramatically restrict asylum protections for domestic abuse victims.

“I’d seen the faces of these families,” the 43-year-old judge said. “They weren’t abstractions to me.”

Eric Risberg / AP

Hundreds of people overflow onto the sidewalk in a line snaking around the block outside a US immigration office with numerous courtrooms in San Francisco.

Jamil, a mother of two young daughters, had been shaken by the images and sounds that came as a result of the Trump administration’s policy to separate families at the border. As a judge who oversaw primarily cases of women and children fleeing abuse and dangers abroad, this was the last straw.

Soon after, she stepped down from the court.

“I can’t do this anymore,” she told friends. “I felt that I couldn’t be ‘Rebecca Jamil, representative of the attorney general’ while these things were going on.”

In many ways, her resignation underscores the tenuous position of immigration judges, who are overseen by the attorney general and susceptible to the shifting winds of each administration. To avoid potential conflicts, the union that represents the judges has long called for its court to be an independent body, separate from the Department of Justice.

The Trump administration has undertaken a monumental overhaul of the way immigration judges, which total around 400 across the country, work: placing quotas on the number of cases they should complete every year, ending their ability to indefinitely suspend certain cases, restricting when asylum can be granted, and pouring thousands of previously closed cases back into court dockets.

In the meantime, the case backlog has jumped to more than 800,000 under the administration and wait times have continued to skyrocket to hundreds of days.

The quotas in particular have made judges feel as if they were cogs in a deportation machine, as opposed to neutral arbiters given time to thoughtfully analyze the merits of each case.

“The job has become exceedingly more difficult as the court has veered even farther away from being administered as a court rather than a law enforcement bureaucracy,” said Ashley Tabaddor, an immigration judge who heads the National Association of Immigration Judges, a union representing around 350 judges.

And it’s not just Jamil who has departed because of the massive changes to the court undertaken by the Trump administration, according to observers within the Department of Justice and those on the outside. While some, like Jamil, have resigned, others have retired early in large part because of the policies instituted under Trump, they said.

For those remaining at the immigration court, the mood is bleak.

Justin Sullivan / Getty Images

Attorney General Jeff Sessions speaks during a news conference on Oct. 16, 2018.

“It has become so emotionally brutal and exhausting that many people I know are leaving or talking about finding an exit strategy,” said one immigration judge who declined to be named. “Morale has never, ever been lower.”

Another Justice Department official, who was not authorized to speak on the record, told BuzzFeed News, “It is exhausting when you feel undervalued by the people at the top of your organization, especially when they are motivated by partisanship and have not spent their careers doing the job that you do.”

Tabaddor, the head of the union, said that her group has noticed a higher rate of retirements and resignations than in the past because of the way judges have been treated under Trump.

Some have been bold in their timing. John Richardson, a former immigration judge in Phoenix, stepped down on Sep. 30, 2018 — the day before the administration instituted a quota for the number of cases to be completed by judges.

“The timing of my retirement was a direct result of the draconian policies of the Administration, the relegation of [judges] to the status of ‘action officers’ who deport as many people as possible as soon as possible with only token due process, and blaming [judges] for the immigration crisis caused by decades of neglect and under funding of the Immigration Courts,” he said in a statement to BuzzFeed News.

Another judge who resigned from the bench in September told staff members in a goodbye email, “I know things are getting difficult for you at [the Executive Office for Immigration Review], but I believe all you will ‘ride through the storm’ and ‘come out with a smile.’”

There have long been work challenges for immigration judges, including heavy caseloads and assignments, leading to comparatively high burnout rates. Justice Department officials told BuzzFeed News that concerns over retirements were nothing new.

“In 2015, 2013, and 2011, the National Association of IJs [immigration judges] raised the same concerns. In 2011, the NAIJ said that ‘stress on judges has reached unbearable levels … a large contributing factor to retirement at the earliest possible opportunity,’” said Steven Stafford, a Justice Department spokesperson. “What is actually new is that we are hiring more and more IJs and doing so faster than ever before. Today we have 68.9 percent more IJs than we did in 2010, and that number is only rising.”

According to the agency, from the beginning of fiscal year 2014 through Feb. 12, 2019, 94 immigration judges have retired, separated, or died. More than a third of those judges, 32, have left since Oct. 1, 2017. The agency does not track why judges leave their positions.

To those within the court and others who have recently retired, the situation has worsened to an unprecedented level. Richardson, the former judge in Phoenix, said he would have continued presiding over immigration cases if the status quo had remained.

“Yes, I was 75 years old with over 50 years of honorable federal service with the Department of Defense and the Department of Justice, but had no plans for retirement as long as I was treated with respect, appreciated, and provided adequate support,” he said. “I had 28 years as an IJ and very much enjoyed my job, even with the poor funding and lack of support by Congress and the White House during that 28 years.”

Jeff Chase, a former immigration judge who stepped down years ago and who speaks regularly with others who’ve left the bench, was blunt in his characterization.

“The fastest growth industry is former immigration judges,” Chase said. Those still on the bench have told him, “It’s horrible. Whatever you think it is, it is much, much worse.”

In the meantime, the Trump administration has hired more than 100 judges to not only fill the vacancies of those who’ve retired but to add numbers to the bench. It’s a rehauling of the courts that could “have a drastic impact,” according to Chase.

Many of the judges retiring in recent months are experienced jurists, hired by the Clinton administration in the mid to late ’90s, he said. These judges, Chase said, were more willing to push back on claims made in court by US Immigration and Customs Enforcement or to allow immigrants extended time to make their cases in what could otherwise be a rushed procedure.

In their place, Chase said, are judges hired by the new administration with case completion quotas, a two-year probation period, and a mandate to avoid showing sympathy for the people appearing before them.

“Even if it doesn’t show up on the sheet, just the level of humanity, that makes a huge difference — that’s what this administration is trying to remove from the immigration judge corps,” he said.

Constanza Hevia for BuzzFeed News

Rebecca Jamil holds her immigration judge certificate.

For her part, Jamil wanted to become an immigration judge from the earliest moments of her legal career. After working as a staff attorney at the 9th Circuit US Court of Appeals, she joined the government as a prosecutor with ICE in 2011, where she was able to use discretion to focus deportation efforts on those with serious criminal backgrounds. Under the Trump administration, ICE attorneys have been told that nearly all undocumented immigrants are priorities for deportation.

In 2014, Jamil took a chance to fulfill her dream: She applied to become an immigration judge. It was a 17-month process, full of drawn-out interviews in Washington, DC, but finally, in 2015 she received a phone call informing her that she got the job.

“I thought, and I must have told most people I know, that this is the last job that I would ever have. It’s all I wanted to do,” she said.

Jamil dedicated herself to the exhausting career. She oversaw a docket made up primarily of families and regularly heard cases in which women and children applied for asylum based on abuse that they had experienced by partners and family members abroad.

Day in and day out, Jamil heard intense testimony of physical and sexual violence against women and children.

“You’re sitting in a windowless room and people tell you the very worst parts of their life and you have to decide if it is enough to stay in the US,” she said. “That is very tiring day after day to be the person who makes that decision.”

Then, under the Trump administration, things started to change. In 2018, Sessions instituted a new policy, severely limiting when judges could suspend certain cases. Suddenly, her docket expanded and she wasn’t allowed to decide which cases deserved to remain in court and which didn’t.

Jamil and fellow immigration judges were in attendance at the Virginia conference where Sessions spoke for annual trainings on courtroom procedure. The year before, jurists heard substantive legal updates and trainings on bias in the courtroom.

This version of the training, however, felt different.

“The entire conference was profoundly disturbing. Do things as fast as possible. There was an overarching theme of disbelieving aliens and their claims and how to remove people faster,” Jamil said. “That is not what I saw my job as an immigration judge to be. I was not trained to do that.”

Soon after she returned home, Jamil put in her resignation. Her colleagues fretted, probing her about whether she had considered the type of judge that could fill her spot on the bench and the impact that could have.

She didn’t have an answer, but she knew that she couldn’t do it any longer.

“Family separations; Sessions making his own case law on asylum; when we could continue cases — I could no longer sit below the seal of the Department of Justice and represent the Department of Justice at that point,” Jamil said. “They just chipped away at our authority on a daily basis. It felt like we weren’t really judges. It was frustrating and demoralizing.”

A former colleague, Laura Ramirez, worked for years as an immigration judge in San Francisco. In December, she retired at the earliest date possible, five days after she turned 60.

The changes put in place by the Trump administration, especially the case quotas, and the politicization of her job, became too much to handle.

The loss of judges like Jamil and others could be immeasurable to both immigrants and Department of Homeland Security attorneys, Ramirez said.

“For the system of justice, there’s these highly qualified, fair, thoughtful people who are being squeezed out of the system for political reasons, basically,” she said. “If people like her are squeezed out, it’s a loss to people who appear before her. The system can’t be fair if good people like her are pushed out.”

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Forcing the “best, brightest, and fairest” out. Reinforcing “worst practices.” Enabling judges with well-established records of anti-asylum, nationality-based, and misogynistic bias. Attacking those private attorneys who steadfastly defended legal and Constitutional rights that were being systematically undermined by the Administration. Blaming others for his own incompetence and lack of scholarship. That’s what the “Sessions program” was all about.

The only good news: folks like Judge Jamil, Judge Ramirez, Judge Richardson, and Judge Chase are now part of the ever-growing “Our Gang” of retired Immigraton Judges helping others to fight the injustices and destruction of Due Process being pushed by the Trump Administration and a DOJ that has abandoned its mission in favor of a White Nationalist political agenda. Our voices are being heard in support of the efforts of the “New Due Process Army.”

And, while I doubt that anyone outside of Trump and Miller can match the viscous lies, racism, and knowingly false narratives of Sessions, I wouldn’t expect much improvement under Barr. Barr thought Sessions was “the greatest thing since sliced bread.” That, more than the Mueller investigation, should have caused all Democrats to vote against his confirmation. He’ll just “lose” some of the overtly racist and inflammatory lingo of the White Nationalist restrictionists and attack immigrants on the basis of bogus “strict enforcement” platitudes.

Every American who believes in our Constitution and thinks that America is different from the “Banana Republics” we often criticize will be threatened by this development. Malicious harm to the most vulnerable among us is harm to all; and the collapse of one of the “building blocks” at the “retail level” of the American justice system will adversely affect everybody’s ability to get justice with fairness and impartiality.

Many of us don’t think we will need fair, independent, and impartial courts until we do. Once the Trump Administration destroys them, they won’t easily be rebuilt.

Who will defend your rights when the time comes if you stand by and watch the rights of others being trampled?

PWS

02-14-19

CALL US CRAZY, BUT . . . . THERE ARE SOLUTIONS TO THE IMMIGRATION COURT BACKLOG PROBLEM THAT WILL ENHANCE FAIRNESS & DUE PROCESS WITHOUT BREAKING THE BANK — It Just Requires Some Imagination, Initiative, & An Unswerving Commitment To Putting Due Process & Fairness First — The “Lister-Schmidt Proposal”

CALL US CRAZY, BUT . . . . THERE ARE SOLUTIONS TO THE IMMIGRATION COURT BACKLOG PROBLEM THAT WILL ENHANCE FAIRNESS & DUE PROCESS WITHOUT BREAKING THE BANK — It Just Requires Some Imagination, Initiative, & An Unswerving Commitment To Putting Due Process & Fairness First — The “Lister-Schmidt Proposal”

The other day I got a call from my good friend and UW Law classmate, retired Wisconsin State Judge Tom Lister. The conversation went something like this:

TOM: Schmidt, I’ve been reading about the backlog in your blog — 1.1 million cases! No way it’s going to be solved just by hiring more judges. But, hey, I’m out here living well in retirement, and I’d be happy to help out. And there are hundreds, perhaps thousands of other retired judges throughout the U.S who probably would be willing to pitch in too.

ME: Yeah, sounds nice Tom, but I doubt there is any money in the EOIR budget for hiring retired judges. They once claimed they would bring back some of my retired colleagues, but the program doesn’t seem to have gone anywhere.

TOM: I don’t need a salary. I’m willing to volunteer! Just pay my incidentals.

ME: Well, then there’s this thing called the Anti-Deficiency Act that prevents agencies like DOJ from accepting free services. It would take some kind of statutory waiver . . . .

By that time, I felt that I was retreating into just the type of bureaucratic “yes-buts” or “passive yeses” that I used to hate during my days as a bureaucrat right up until the present.

But, what if Congress created an independent Immigration Court free of the “bureaucratic no-nos” that plague the DOJ bureaucracy? And what if the system were run by actual sitting judges committed to using “teamwork and innovation” to solve problems, institute “best practices,” and aspire to become “the world’s best tribunals” guaranteeing fairness and Due Process for all?”

Maybe we’d have things like this:

SENIOR JUDICIAL DUE PROCESS BRIGADE

Retired judges of all types would be trained and available to assist the Immigration Courts in dealing with “surges,” retirement waves, changes in the law, and other “emergencies” on a volunteer basis.

DIVISION A: RETIRED IMMIGRATION JUDGES

They could be trained to handle all types of immigration cases on a volunteer “as needed” basis. This would be very similar to the Senior Judge Corps used by other Federal Courts.

DIVISION B: RETIRED JUDGES FROM OUTSIDE THE IMMIGRATION BENCH

They could be trained to handle certain types of Immigration Court adjudications that are primarily fact-findings that would require some basic knowledge of immigration law but not the degree of specialized expertise that might be expected of a permanent Immigration Judge. Like “Division A” they would be volunteers, requiring expense reimbursement only.

Obvious candidates for “Division B Judges:”

Cancellation of Removal all types where basic eligibility is uncontested and the only issues are hardship and discretion;
Bonds where there are no statutory eligibility issues;
Adjustments of Status;
“Voluntary Departure Only” cases;
Master Calendars;
Withdrawals and other stipulated cases;
Status Conferences;
In Absentia dockets.

ASYLUM OFFICER MAGISTRATE BRIGADE

Put the Asylum Officers under the Immigration Courts where they can be used for a wide range of adjudications much like U.S. Magistrate Judges. This would include, but not be limited to, asylum, withholding, and CAT cases. Another obvious candidate would be certain Non-Lawful-Permanent Resident Cancellation of Removal cases.

Since the existing USCIS program would be folded in, the expenses of this conversion would be minimal and the possibilities for improving justice, due process, and efficiency limitless!

This is by no means the full extent of what could be done to improve the delivery of justice and fairness in the U.S. Immigration Courts. But, to let the “creative juices and efficiencies flow,” it will require Congress to move the Immigration Courts out of the DOJ and create an independent court where judges are free to work as a team and with “stakeholders” to solve problems, rather than creating new ones or aggravating existing ones.

PWS

02-14-19

HEAR MY LATEST PODCAST ON “GOOD LAW/BAD LAW” WITH AARON J. FREIWALD!

Here’s the link:

http://www.law-podcast.com/

PWS

02-11-19

ANOTHER UGLY TRUMP MILESTONE: Administration’s “Malicious Incompetence” Jacks Immigration Court Backlog To 1.1 Million! — Even With 17% Increase In Judges, Trump & Sessions Incredibly DOUBLED Backlog In Under Two Years!

https://trac.syr.edu/immigration/reports/536/

Immigration Court Backlog Surpasses One Million Cases

Figure 1. Immigration Court Workload, FY 2018

The Immigration Court backlog has jumped by 225,846 cases since the end of January 2017 when President Trump took office. This represents an overall growth rate of 49 percent since the beginning of FY 2017. Results compiled from the case-by-case records obtained by TRAC under the Freedom of Information Act (FOIA) from the court reveal that pending cases in the court’s active backlog have now reached 768,257—a new historic high.

In addition, recent decisions by the Attorney General just implemented by the Executive Office for Immigration Review (EOIR) have ballooned the backlog further. With a stroke of a pen, the court removed 330,211 previously completed cases and put them back on the “pending” rolls. These cases were previously administratively closed and had been considered part of the court’s completed caseload[1].

When the pending backlog of cases now on the active docket is added to these newly created pending cases, the total climbs to a whopping 1,098,468 cases! This is more than double the number of cases pending at the beginning of FY 2017.

Pending Cases Represent More Than Five Years of Backlogged Work

What does the pending case backlog mean as a practical matter? Even before the redefinition of cases counted as closed and cases considered pending, the backlog had reached 768,257 cases. With the rise in the number of immigration judges, case closures during FY 2018 rose 3.9 percent over FY 2016 levels, to 215,569. In FY 2017, however, closure rates had fallen below FY 2016 levels, but last year the court recovered this lost ground[2].

At these completion rates, the court would take 3.6 years to clear its backlog under the old definition if it did nothing but work on pending cases. This assumes that all new cases are placed on the back burner until the backlog is finished.

Now, assuming the court aims to schedule hearings eventually on all the newly defined “pending” cases, the backlog of over a million cases would take 5.1 years to work through at the current pace. This figure again assumes that the court sets aside newly arriving cases and concentrates exclusively on the backlog.

Table 1. Overview of Immigration Court Case Workload and Judges
as of end of FY 2018

	Number of Cases/Judges	Percent Change Since Beginning of FY 2017
New Cases for FY 2018	287,741	7.5%
Completed Cases for FY 2018	215,569	3.9%
Number of Immigration Judges	338/395*	17.0%
Pending Cases as of September 30, 2018:
On Active Docket	768,257	48.9%
Not Presently on Active Docket	330,211	na
Total	1,098,468	112.9%

* Immigration Judges on bench at the beginning and at the end of FY 2018; percent based on increase in judges who served full year.
** category did not exist at the beginning of FY 2017.

Why Does the Backlog Continue To Rise?

No single reason accounts for this ballooning backlog. It took years to build and new cases continue to outpace the number of cases completed. This is true even though the ranks of immigration judges since FY 2016 have grown by over 17 percent[3] while court filings during the same period have risen by a more modest 7.5 percent[4].

Clearly the changes the Attorney General has mandated have added to the court’s challenges. For one, the transfer of administratively closed cases to the pending workload makes digging out all the more daunting. At the same time, according to the judges, the new policy that does away with their ability to administratively close cases has reduced their tools for managing their dockets.

There have been other changes. Shifting scheduling priorities produces churning on cases to be heard next. Temporary reassignment and transfer of judges to border courts resulted in additional docket churn. Changing the legal standards to be applied under the Attorney General’s new rulings may also require judicial time to review and implement.

In the end, all these challenges remain and the court’s dockets remain jam-packed. Perhaps when dockets become overcrowded, the very volume of pending cases slows the court’s ability to handle this workload – as when congested highways slow to a crawl.

Footnotes

^[1] The court also recomputed its case completions for the past ten years and removed these from its newly computed completed case counts. Current case closures thus appear to have risen because counts in prior years are suppressed. Further, the extensive judicial resources used in hearing those earlier cases are also disregarded.

^[2] For consistency over time, this comparison is based upon the court’s longstanding definition, which TRAC continues to use, that includes administratively closed cases in each year’s count. Under this standard, numbers are: 207,546 (FY 2016), 204,749 (FY 2017), 215,569 (FY 2018).

^[3] The court reports that the numbers of immigration judges on its rolls at the end of the fiscal year were: 289 (FY 2016), 338 (FY 2017), and 395 (FY 2018). The 17 percent increase only considers judges who were on the payroll for the full FY 2018 year. See Table 1. For more on judge hires see: https://www.justice.gov/eoir/page/file/1104846/download

^[4] New court cases based upon court records as of the end of FY 2018 were: 267,625 (FY 2016), 274,133 (FY 2017), and 287,741 (FY 2018). Due to delays in adding new cases to EOIR’s database, the latest counts may continue to rise when data input is complete. TRAC’s counts use the date of the notice to appear (NTA), rather than the court’s “input date” into its database. While the total number of cases across the FY 2016 – FY 2018 period reported by TRAC and recently published by EOIR are virtually the same, the year-by-year breakdown differs because of the court’s practice of postponing counting a case until it chooses to add them to its docket.

TRAC is a nonpartisan, nonprofit data research center affiliated with the Newhouse School of Public Communications and the Whitman School of Management, both at Syracuse University. For more information, to subscribe, or to donate, contact trac@syr.edu or call 315-443-3563.

*********************************

This is truly “Kakistocracy in Action.” Remember these numbers are as of the end of FY 2018, September 30, 2018. Trump’s Shutdown added another 80,000 to 100,000 to the backlog. Combined with “normal mismanagement,” the backlog is probably over 1.3 million by now and growing daily.

Unfortunately, this isn’t going to stop until either Congress or the Article III courts step in, put an end to this travesty, and force due process, fairness, and administrative competence back into this dysfunctional national disgrace.

PWS

02-05-19

THE GIBSON REPORT 02-04-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

THE GIBSON REPORT 02-04-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

TOP UPDATES

USCIS Processing Delays Have Reached Crisis Levels Under the Trump Administration

AILA’s analysis of USCIS data reveals crisis-level delays in its processing of applications and petitions for immigration benefits under the Trump administration. This brief examines how current USCIS policies lengthen the delays and what steps USCIS and Congress can take to remedy this crisis. AILA Doc. No. 19012834

ICE told hundreds of immigrants to show up to court Thursday — for many, those hearings are fake

CBS: ICE is required to include court dates with court notices, per a Supreme Court decision last summer, but most don’t actually reflect scheduled hearings. The American Immigration Lawyers Association issued a “practice alert” on Tuesday evening, warning members “the next upcoming date on NTAs that appears to be fake is this Thursday.”

Immigration Court Backlog Surpasses One Million Cases

TRAC: The Immigration Court backlog has jumped by 225,846 cases since the end of January 2017 when President Trump took office. This represents an overall growth rate of 49 percent since the beginning of FY 2017.

Retired judge: Shut down this immigrant detention center

Houston Chronicle: Lumpkin has fewer than 1,200 locals plus up to 1,900 men delivered by U.S. Immigration and Customs Enforcement to Stewart from across the country, including Texas. The town has just one private immigration lawyer.

Prisons Across The U.S. Are Quietly Building Databases Of Incarcerated People’s Voice Prints

Intercept: In New York and other states across the country, authorities are acquiring technology to extract and digitize the voices of incarcerated people into unique biometric signatures, known as voice prints. Prison authorities have quietly enrolled hundreds of thousands of incarcerated people’s voice prints into large-scale biometric databases. Computer algorithms then draw on these databases to identify the voices taking part in a call and to search for other calls in which the voices of interest are detected. Some programs, like New York’s, even analyze the voices of call recipients outside prisons to track which outsiders speak to multiple prisoners regularly.

Immigrant rights attorneys and journalists denied entry into Mexico

LA Times: Two U.S. immigrant rights attorneys and two journalists who have worked closely with members of a migrant caravan in Tijuana said they had been denied entry into Mexico in recent days after their passports were flagged with alerts by an unknown government.

Migrants Say They Pay For Inclusion On ‘La Lista’ To Make Border Crossing

Appeal: Migrants near Brownsville, Texas say that if they don’t bribe Mexican officials they’re stuck at the bottom of a list of people seeking refuge in the U.S. via international bridges

‘A watershed moment’: Trump faces crossroads amid mounting threats on all sides

WaPo: Senate Republicans also are overwhelmingly resistant to declaring a national emergency, according to two senior GOP aides. Senate Majority Leader Mitch McConnell (R-Ky.) privately cautioned Trump last week that doing so could divide the GOP and told the president that Congress might pass a resolution disapproving an emergency declaration.

ICE Failed to Hold Detention Center Contractors Accountable, Report Finds

NPR: The report detailed several of the most egregious cases, including contractors failing to notify ICE of sexual assaults and employee misconduct, using tear gas instead of approved pepper spray, and commingling detainees with serious criminal histories with those who might be at risk of sexual assault.

India Protests U.S. Detention of Students in Fake-University Sting

NYT: The American authorities said this past week that they had indicted eight people accused of exploiting the country’s student visa system. They were said to have helped foreign nationals illegally remain in the United States by enrolling them into the University of Farmington in Farmington Hills, Mich., which billed itself as a “nationally accredited business and STEM institution” with an innovative curriculum, flexible class schedules and a diverse student body. But the private university was being secretly operated by agents of the Department of Homeland Security to expose immigration fraud, according to federal prosecutors who announced charges in the case.

Federal prosecutors unseal indictments naming 19 people linked to Chinese ‘birth tourism’ schemes that helped thousands of aliens give birth in US to secure birthright citizenship for their children

USCIS: The indictments charge operators and clients of three “maternity house” or “birthing house” schemes that were dismantled in March 2015 when federal agents executed 35 search warrants, which resulted from international undercover operations.

Two young adults infiltrated an immigration detention center in Florida. This Sundance film shows what they found

Deseret News: In 2012, Saavedra and Martinez, two young adults in their early 20s, decided to turn themselves in to authorities to get inside the Broward Transitional Center, a for-profit immigration detention facility in Florida that houses 600 men and 100 women.

ICE confirms it is force-feeding detainees on hunger strike

WaPo: Immigration and Customs Enforcement officials have confirmed they are force-feeding nine detainees who initiated a hunger strike at an El Paso detention center.

The Travel Ban at Two: Rocky Implementation Settles into Deeper Impacts

MPI: Monthly immigrant visa issuances to nationals of Iran, Libya, Somalia, Syria, and Yemen were down an average of 72 percent between FY 2017 and 2018 (see Figure 1).

OCA Mulls Rule Requiring Judicial Warrants for ICE Arrests in NY Courts

NY Law Journal: The Office of Court Administration, which oversees New York state courts, is considering making a rule that would prohibit federal immigration officers from arresting undocumented immigrants in state courthouses without a warrant signed by a federal judge.

Government Quietly Increases ICE Detention to 48,000 Beds During the Shutdown
AIC: ICE drastically expanded its network of immigration jails in the last month by a startling 7 percent.

LITIGATION/CASELAW/RULES/MEMOS

Defense Department engaged in illegal discrimination against some soldiers, district court finds

ABA: A Seattle federal district court ruled Thursday that the federal government illegally discriminated against naturalized U.S. citizens in the U.S. Army by requiring security checks on them every two years, without individualized suspicion.

Acting AG Refers BIA Case to Himself and Invites Amicus Regarding “Particular Social Group” Membership

The Acting AG referred a BIA decision to himself for review whether an individual may establish persecution on account of membership in a “particular social group” based on membership in a family unit. Amicus briefs are due by 2/25/19. Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018) AILA Doc. No. 18120432

Acting AG Refers BIA Case to Himself and Invites Amicus Regarding Cancellation of Removal and Impact of Multiple DUIs

The Acting AG to review cancellation of removal eligibility and the impact of multiple convictions for driving while intoxicated or driving under the influence with regards to “good moral character.” Amicus briefs due by 2/25/19. Matter of Castillo-Perez, 27 I&N Dec. 495 (A.G. 2018) AILA Doc. No. 18120437

BIA Terminates Proceedings Over DHS Opposition Following Approval of U Visa

Unpublished BIA decision reopens and terminates proceedings sua sponte over DHS opposition following approval of respondent’s application for U nonimmigrant status. Special thanks to IRAC. (Matter of Singh, 1/18/18) AILA Doc. No. 19012838

BIA Orders Further Consideration of Request for Continuance for U Visa Applicant

Unpublished BIA decision remands for further consideration of request for continuance pending U visa application adjudication where respondent was no longer detained and IJ didn’t consider likelihood application would be granted. Special thanks to IRAC. (Matter of Munoz-Pocasangre, 1/19/18) AILA Doc. No. 19012841

BIA Rescinds In Absentia Order Because NTA Did Not Specify Immigration Court

Unpublished BIA decision rescinds in absentia order because NTA did not specify the particular immigration court at which the respondent was required to appear. Special thanks to IRAC. (Matter of Ramos, 2/9/18) AILA Doc. No. 19020434

BIA Vacates Bond Decision Based on Allegations in Police Report

Unpublished BIA decision reverses IJ determination that respondent was danger to community, stating that it accords little weight to conduct described in police documents that is neither prosecuted criminally nor independently corroborated. Special thanks to IRAC. (Matter of A-B-L-, 1/23/18) AILA Doc. No. 19012940

BIA Finds DHS Failed to Properly Authenticate Form I-213

Unpublished BIA decision vacates finding that respondent was present without being admitted or paroled because DHS failed to properly authenticate the Form I-213 used to establish alienage. Special thanks to IRAC. (Matter of Reyes, 1/26/18) AILA Doc. No. 19013033

BIA Finds Respondent Did Not Knowingly Waive Appeal

Unpublished BIA decision finds respondent did not knowingly waive right to appeal because IJ did not warn him failing to appeal would constitute an irrevocable waiver of the right. Special thanks to IRAC. (Matter of Chaudhary, 1/18/18) AILA Doc. No. 19012839

BIA Finds LPR Who Involuntarily Reentered U.S. Without Inspection Was Not Seeking Admission

Unpublished BIA decision holds that returning LPR was not properly regarded as an applicant for admission because he was fleeing for his life from a drug cartel in Mexico when he illegally reentered the country. Special thanks to IRAC. (Matter of I-C-B-, 1/25/18)

BIA Holds Utah Sexual Battery Not a CIMT

Unpublished BIA decision holds that sexual battery under Utah Code section 76-9-702(3) is not a CIMT because it is a general intent offense for which no harm or evil intent is required. Special thanks to IRAC. (Matter of V-C-, 1/24/18) AILA Doc. No. 19013031

BIA Equitably Tolls Motion to Reopen Deadline

Unpublished BIA decision equitably tolls deadline for motion to reopen where respondent was suffering from undiagnosed medical condition while in detention and was unable to obtain record from immigration court. Special thanks to IRAC. (Matter of A-A-B-, 1/22/18) AILA Doc. No. 19012939

BIA Remands for Testimony on Amount of Loss to Victims of Fraud

Unpublished BIA decision holds that IJ should have permitted respondent to testify regarding amount of loss to the victims before finding that he had been convicted of an aggravated felony under INA §101(a)(43)(M)(i). Special thanks to IRAC. (Matter of Mena, 2/7/18) AILA Doc. No. 19020103

BIA Rescinds In Absentia Order Against Respondent Who Recently Gave Birth

Unpublished BIA decision rescinds in absentia order upon finding that respondent giving birth via caesarean section 10 days prior constituted exceptional circumstances for her failure to appear. Special thanks to IRAC. (Matter of Valencia Barragan, 2/5/18) AILA Doc. No. 19020102

BIA Vacates Denial of Bond Hearing to Respondent Mistakenly Designated as Arriving Alien

Unpublished BIA decision reversed determination that IJ lacked jurisdiction over bond hearing where respondent was apprehended after entering country and was mistakenly designated an arriving alien on the NTA. Special thanks to IRAC. (Matter of A-M-Y-, 2/2/18) AILA Doc. No. 19013140

BIA Finds Failure to Meet Filing Deadline Constitutes Ineffective Assistance On Its Face

Unpublished BIA decision holds that prior attorney’s failure to submit application by court-imposed deadline was ineffective assistance on its face, reopening proceedings despite failure to comply with Matter of Lozada. Special thanks to IRAC. (Matter of Cortes-Reyes, 1/26/18) AILA Doc. No. 19013139

BIA Reopens and Terminates Proceedings Sua Sponte Following Reduction in Drug Sentence

Unpublished BIA decision reopens and terminates proceedings sua sponte following reduction of respondent’s sentence for possession of cocaine to simple drug misdemeanor under Cal. Penal Code 1170.18(G). Special thanks to IRAC. (Matter of Gonzalez, 2/2/18) AILA Doc. No. 19020100

BIA Finds Terrorizing Statute Not a CIMT

Unpublished BIA decision holds that terrorizing under Guam Code Ann. 19.60(a) is not a CIMT because the victim is not required to actually experience fear. Special thanks to IRAC. (Matter of Eidaro, 1/19/18) AILA Doc. No. 19012938

CA6 Upholds Determination that Asylee Who Copied and Distributed Flyers Provided Material Support to Terrorist Organizations

The court affirmed USCIS adjustment denial and its finding that MeK and Fek between 1979 and 1981 were Iranian terrorist organizations and that copying and distributing flyers was material in that it was both “relevant” and “significant” to terrorism. (Hosseini v. Nielsen, 12/19/18) AILA Doc. No. 19012833

CA7 Affirms District Court Dismissal of APA and DJA Claims Based on Doctrine of Consular Nonreviewability

The court found that in citing a valid statutory basis and offering a factual predicate, a consular officer’s visa rejection was facially legitimate and bona fide; it also held that plaintiffs made no affirmative showing that officer acted in bad faith. (Yafai v. Pompeo, 1/4/19) AILA Doc. No. 19012901

CA9 Panel Issued Amended Decision on “Crime of Domestic Violence” Conviction

The court issued an amended decision, where the panel concluded that a class one misdemeanor domestic violence assault under Arizona Revised Statutes §§ 13-1203 and 13-3601 conviction was a “crime of domestic violence” under 8 USC §1227(a)(2)(E). (Cornejo-Villagrana v. Whitaker, 12/27/18) AILA Doc. No. 19012836

CA9 Upholds BIA Controlled Substance Removability Finding and Remands to Determine Continuous Presence for Cancellation Claim

The court found that the BIA correctly determined that the Travel Act is divisible and that petitioner was removable based on his conviction for a controlled substance offense and remanded for consideration of the claim for cancellation of removal. (Myers v. Sessions, 9/25/18)

CA9 Denies Petition for Review Citing Bermudez-Cota After NTA Didn’t Specify Time/Date

The court denied petitioner’s petition for review, holding that a NTA that does not specify the time/date vests an IJ with jurisdiction over the removal proceedings, so long as a notice specifying this information is sent to the individual in a timely manner. (Karingithi v. Whitaker, 1/28/19) AILA Doc. No. 19012972

CA9 Denied Petition for Review After Applying Leal I and Leal II Standard and Finding Petitioner Removable For Two CIMTs

The court held the BIA did not commit any of the raised legal errors related to In re: Leal and Leal v. Holder by concluding that the petitioner’s conviction for reckless engagement was a crime involving moral turpitude. (Olivas-Motta v. Whitaker, 12/19/18) AILA Doc. No. 19012933

Ohio Attorneys Sue ICE Alleging Public, Humanitarian, and Bioethical Abuse

Attorneys David Malik and Anna Markovich submitted a FOIA request asking ICE for information about the people who have been deported, ICE’s policies related to racial and ethnic profiling, and ICE’s process for determining which individuals to deport. (Malik v. ICE, 1/9/19 AILA Doc. No. 19012832

USCIS Announces Online Case Status Feature for Asylum Applicants

USCIS announced that applicants who have a pending affirmative asylum application with USCIS can now check the status of their applications online at uscis.gov/casestatus. It will not cover defensive asylum applicants whose cases are pending in immigration court. AILA Doc. No. 19012804

DHS OIG Issues Report on ICE’s Failure to Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable

DHS OIG’s report found ICE doesn’t adequately hold detention facility contractors accountable to performance standards and issues waivers seeking to exempt them from complying with certain standards instead of applying financial penalties for deficient conditions. AILA Doc. No. 19020104

DHS Releases Policy Guidance for Implementation of the Migrant Protection Protocols

CBP Releases Guidance on Migrant Protection Protocols

USCIS Releases Guidance for Implementing Section 235(b)(2)(C) of the INA and the Migrant Protection Protocols

EOIR Releases Addendum to LOP Cohort Analysis of Phase I: Detention Length with DHS Data

EOIR Releases Phase II Analysis of Its Legal Orientation Program Cohort

Announcements of ICE Enforcement Actions

ICE reports that it arrested 118 during a five-day period, from January 14-18, 2019, in New York City, Long Island, and the Hudson Valley. AILA Doc. No. 17041232

HHS Annual Update of Poverty Guidelines for 2019

Health and Human Services (HHS) notice providing the annual update of the HHS poverty guidelines to account for last calendar year’s increase in prices as measured by the Consumer Price Index, effective 1/11/19. (84 FR 1167, 2/1/19) AILA Doc. No. 19020107

Applicants Can Now Request Certificates of Citizenship Online

U.S. Citizenship and Immigration Services (USCIS) announced today that applicants can now complete and file Form N-600, Application for Certificate of Citizenship, and Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322 online.

RESOURCES

·         IDP is releasing a new practice advisory and issue-spotting checklist addressing conviction finality issues in light of the Board of Immigration Appeals’ August 2018 decision in Matter of J.M. Acosta.

·         Practice Alert: DHS Issuing NTAs with Fake Times and Dates

·         Practice Alert: Long-Pending I-765 and I-131 Applications at the NBC

·         AILA’s Administrative Litigation Task Force Provides Litigation Briefings

·         Ethical Considerations in Declining Representation

·         Crossing State Lines: A Practical Guide for Immigration Lawyers When Volunteering Their Services Out of State

·         Zero Protection: How U.S. Border Enforcement Harms Migrant Safety and Health

·         Matter of A-B-: Case Updates, Current Trends, and Suggested Strategies

·         Stopping Immigration Services Scams: A Tool for Advocates and Lawmakers

·         Filing DACA Applications in the Wake of Federal Court Rulings

·         Central Americans were Increasingly Winning Asylum Before President Trump Took Office

EVENTS

2/4/19 AILA CLE: Local Agency Practices In NY, NJ, & CT

2/5/19 Developments in Waivers: The I-601A, Removal Proceedings, and Beyond

2/6/19 Matter of A-B-: Case Updates, Current Trends, and Suggested Strategies

2/7/19 Basic Immigration Law 2019: Business, Family, Naturalization and Related Areas

2/8/19 Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2019

2/12/19 I-751 Petitions: How to Handle Delays and Changes in Circumstances

2/26/19 Naturalization Challenges and Strategies in the Trump Era

3/8/19 Asylum & Immigration Conference with the Federal Bar Association at NY Law School

3/12/19 AILA Spring Federal Court Litigation Conference

8/4/19 Legal, Cultural, & Historical Approach to Understanding the Complex and Controversial Issue Dominating Our National Dialogue

ImmProf

Monday, February 4, 2019

·         From the Bookshelves: Vanishing Frontiers: The Forces Driving Mexico and the United States Together Hardcover by Andrew Selee

·         Shoba Wadhia on the Two Year Anniversary of the Travel Ban

Sunday, February 3, 2019

·         Race in Our Politics: A Catalog of Campaign Materials — Immigration as a Racial Dog Whistle

·         University of Farmington? ICE set up a fake university. Hundreds enrolled.

·         The Travel Ban at Two: Rocky Implementation

·         Immigrants from New Origin Countries in the United States

·         “U.S.” Rapper Facing Removal

·         Federal prosecutors unseal indictments naming 19 people linked to Chinese ‘birth tourism’ schemes

·         SCOTUS Says Government Must Give Notice of Time and Place of Immigration Court Hearings, So Government Gives Times/Places for Nonexistent Hearings. Again.

·         Super Sunday: DHS Fights Super Scammers

·         THE BIG SLOWDOWN — AILA Policy Brief: USCIS Processing Delays Have Reached Crisis Levels Under the Trump Administration

·         At the Movies: The Invisibles

Saturday, February 2, 2019

·         Amanda Frost: The revival of denaturalisation under the Trump administration

·         Trump’s Former Undocumented Housekeeper to Join Congressman as State of the Union Guest

·         From the Bookshelves: Mexico The Good Neighbor: Contracts, Betrayal and Survival in the Cold War by Soledad Quartucci

·         Al Otro Lado Legal Director Nora Phillips Denied Entry to Mexico in Apparent Retaliation for Human Rights Work

Friday, February 1, 2019

·         Immigration Article of the Day: Growing the Resistance: A Call to Action for Transactional Lawyers in the Era of Trump by Gowri Krishna

Thursday, January 31, 2019

·         Detained Migrants Being Force Fed

·         Alleged Illegal Voters in Texas are Actually Citizens

·         Immigration Article of the Day: Health Justice for Immigrants by Medha D. Makhlouf

·         No-Stop Religious Services to Avoid Deportation in the Netherlands

·         Symposium: Immigration in the Trump Era, Southwestern Law School

Wednesday, January 30, 2019

·         Border Fencing To Prevent Another Kind of Migration Altogether

·         When Spouse’s Freedom Depends on ICE Agent’s Discretion

·         From the Bookshelves: Islands of Sovereignty: Haitian Migration and the Borders of Empire by Jeffrey S. Kahn

·         U.S. Government Shutdown Worsens Immigration Court Backlog

·         How immigration could help a shrinking American labor force

·         Immigration and Civil Rights in an Era of Trump by Kevin R. Johnson

Tuesday, January 29, 2019

·         Border Patrol Openings Hard to Fill

·         Call For Papers: Emerging Immprofs @ BYU June 7 & 8

Monday, January 28, 2019

·         Desert X: Roadtripping for Large-Scale Immigration Art

·         Message to Italy: Allow Minors to Land

If you would like to be added to the Weekly Briefing distribution list, please email egibson@nylag.org.

*****************************

Check out Elizabeth’s first four items showing how Trump’s “malicious incompetence” is destroying the U.S. immigration system and harming people in a variety of ways.

PWS

02-05-19

EFFECTS OF TRUMP SHUTDOWN, “MALICIOUS INCOMPETENCE” CONTINUE TO ROIL U.S. IMMIGRATION COURT SYSTEM, SCREW MIGRANTS WHO FAITHFULLY SHOW UP FOR “FAKE” HEARINGS! – Trump Shut Down USG Over A Bogus “National Immigration Emergency” While Deeming Immigration Courts “Nonessential!” – Would ICE Agents Dare File “Charging Documents” Containing False Information With “Real” U.S. Courts?

https://www.cnn.com/2019/01/31/politics/immigration-court-fake-dates/index.html

By Catherine E. Shoichet, Angela Barajas and Priscilla Alvarez, CNN

Updated 10:15 PM ET, Thu January 31, 2019

Hundreds of people overflow onto the sidewalk in a line snaking around the block outside a U.S. immigration office with numerous courtrooms Thursday, Jan. 31, 2019, in San Francisco. (AP Photo/Eric Risberg)

(CNN)More than 1,000 immigrants showed up at courts across the United States on Thursday for hearings they’d been told were scheduled but didn’t exist, a lawyers’ group said, as the Justice Department struggles with an overloaded immigration court system and the effects of the recently ended partial government shutdown.

Immigration attorneys reported that lines wrapped around the court building in San Francisco, a line stretched for blocks to get into the court in Los Angeles and hundreds of people waited outside the court in Newark, New Jersey.

Thursday’s problems are the latest example of US immigration authorities issuing a large number of inaccurate notices ordering immigrants to appear at hearings that, it later turns out, had never been scheduled.

Lawyers first told CNN last year that they’d observed a wave of what they call “fake dates” pop up. For instance, lawyers reported examples of notices to appear issued for nonexistent dates, such as September 31, and for times of day when courts aren’t open, such as midnight.

“The immigration courts have reached a new crisis point,” said Laura Lynch, senior policy counsel for the American Immigration Lawyers Association. The group said it tracked over 1,000 people showing up in courts Thursday with inaccurate hearing notices.

In Los Angeles, immigrants who had “fake dates” were given paperwork acknowledging they’d appeared at the immigration court, according to attorney Jonathan Vallejo, who provided this redacted copy of one such form.

‘I’m afraid and nervous’

Inside a packed waiting room at the Arlington Immigration Court on Thursday, confused immigrants clutching paperwork asked lawyers for help. Some said they’d driven hours to get to court and had awakened at 3:30 a.m. to arrive on time.

“I’m left with a question mark. I’m wondering, ‘Why?'” said Bigail Alfaro, 39, who’s seeking asylum with her two children. “I’m afraid and nervous.”

RELATED: The government shutdown took its toll on the nation’s immigration courts

As she prepared to head into court for a scheduled hearing, immigration attorney Eileen Blessinger found herself fielding questions and asking court officials to stamp paperwork to provide proof that immigrants had shown up.

“What happened?” one woman asked her.

“You don’t have court, because they made a mistake,” Blessinger said.

At an immigration court in Atlanta, a crowd of around 40 people were turned away, almost one by one, by a Spanish-speaking court employee telling people with notices that their hearings had been “postponed.”

Among those showing up for court were parents with small children, some dressed only with hooded sweatshirts and covering themselves with blankets, with the temperature in Atlanta in the mid-20s.

“They told us they would send us another citation by mail,” said a man named Jose who asked to be identified only by his first name. “But who knows when? And the hard part is they don’t let us know with enough time, enough time to prepare ourselves.”

In Los Angeles, immigration attorney Jonathan Vallejo said he saw 30-40 people ushered into a room where they were told they didn’t have hearings and given forms acknowledging they’d appeared at the court.

“It’s absurd what’s going on,” he said.

RELATED: Trump admin faces two big deadlines on family separation policy

Two lawyers. One court. And their fight against the odds.

Problems were also seen in Dallas, Miami and San Diego, Lynch said.

The Executive Office for Immigration Review, the division of the Justice Department that runs the immigration courts, said the weather and government shutdown were partially to blame.

The office “was unable to proceed with hearings for some respondents who believed they had hearings scheduled,” the Justice Department said in a statement. “In some cases, the cases had been rescheduled to another date, but the lapse in appropriations prevented the immigration courts from issuing new hearing notices far enough in advance of the prior hearing date.”

An ongoing problem

President Donald Trump has repeatedly criticized the nation’s immigration system, specifically taking issue with the practice of releasing immigrants while they await their court dates. To remedy that, his administration has sought to hire more immigration judges in the hopes of unclogging the court.

But that has not happened — there are 409 immigration judges nationwide but nearly 80 vacancies — and the number of cases continues to grow.

For years, the number of pending cases has been slowly creeping up, as more are added to the docket than can be addressed at any given time. There are more than 800,000 cases pending, according to the Syracuse University’s Transactional Records Access Clearinghouse.

Former Attorney General Jeff Sessions also created a quota system that requires judges to clear at least 700 cases a year in order to receive “satisfactory” performance evaluations. Between 2011 and 2016, judges completed 678 cases a year on average.

Judge Ashley Tabaddor, the president of the National Association of Immigration Judges, described judges in Los Angeles coming back this week to boxes filled to the rim with mail that had piled up over the course of the 35-day partial government shutdown.

“What this does is it adds greater delay to the cases. We were shortchanged five or four weeks of time,” Tabaddor told CNN. “Not only were we not able to hear cases that were previously cases that were scheduled, but it’s going to take time to regroup.”

RELATED: US immigration authorities detail so-called return-to-Mexico guidance for migrants

Immigration attorneys say the instances of mistakenly scheduled hearings unfairly burden immigrants and create more pressure on a system that’s already suffering from a crushing backlog.

“Imagine the stress of facing potential deportation,” North Carolina immigration attorney Jeremy McKinney said on Twitter. “You’re told show up in court or be ordered deported in your absence. You drive hundreds of miles & wait in line only to be told the court date was not real. ‘Sorry for the minor logistical errors.’ “

A NOTICE TO APPEAR AT MIDNIGHT (p. 1)

Atlanta immigration attorney Rachel Effron Sharma says this is an example of a notice a client received, ordering the client to report to an immigration court at a time when the court was closed.

View the entire document with DocumentCloud

The US Supreme Court ruled in June that notices to appear — the charging documents that immigration authorities issue to send someone to immigration court who’s accused of being in the United States illegally — must specify the time and place of proceedings in order to be valid.

Immigration and Customs Enforcement spokeswoman Jennifer Elzea said officials have been working to comply with the court’s requirements for notices to appear, but the lapse in funding during the partial government shutdown had delayed those administrative efforts.

“All appropriate parties are working together to solve this issue going forward,” she said.

In its statement Thursday, the Executive Office for Immigration Review said it had issued policy guidance in December and modified its system so the Department of Homeland Security and its components can directly schedule hearings.

The agency said it “does not expect any further recurrence of this type of situation.”

***********************************************

Yup, and it happened in the “Bay Area” also:

https://www.sfchronicle.com/bayarea/article/Confusion-erupts-as-dozens-show-up-for-fake-13579045.php

Tatiana Sanchez reports for the SF Chronicle:

One woman pulled her daughter out of school to make it to the courthouse on Montgomery Street. Another caught a ride from Fresno. A teenage girl and her ailing mother waited for hours, clutching documents that summoned the mother to Immigration Court Jan. 31.

But none of them got what they came for and expected: a hearing before a judge.

Dozens of people reported Thursday to hearings previously scheduled by the Department of Homeland Security at the federal San Francisco Immigration Court, only to find the appointments didn’t exist.

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Immigration attorneys described similar scenes in Chicago, Atlanta, Virginia, Miami and Texas, where long lines snaked around courthouses for hours.

Federal officials said Thursday’s problems resulted from the government shutdown delaying the process of rescheduling the hearings.

But attorneys representing immigrants called the court dates fake, and said Immigration and Customs Enforcement is sending immigrants notices to appear — charging documents instructing people accused of being in the country illegally to come to court — with court dates it knows are not real.

“Every city in every jurisdiction is doing this, obviously knowing that there really won’t be court on that date,” said Christable Lee, an immigration attorney in San Francisco. “These immigrants are standing with their kids outside with no direction. They’re afraid to stand outside on the sidewalk in front of the courthouse because there could be other immigration authorities there. It’s a really harrowing situation.”

Attorneys say the new practice stems from a U.S. Supreme Court ruling, known as Pereira vs. Sessions that requires notices to appear to include a specific date and time in order to be valid. Previously, immigration authorities could send notices with the date listed as “to be determined.”

A similar situation occurred in several cities nationwide Oct. 31 when dozens of people showed up for court hearings that didn’t exist. Since then, some have reported court dates scheduled on weekends or late at night.

In a prepared statement, ICE denied giving immigrants a fake court date, saying, “Due to the recent partial lapse in government appropriations, the administrative process to resolve this issue was delayed, resulting in an expected overflow of individuals with Notices to Appear listing immigration proceedings on January 31.”

Meanwhile, the Executive Office for Immigration Review, which oversees all immigration courts, said it was “unable to proceed” with hearings for some people who “believed they had hearings scheduled” Thursday.

“In some cases, the cases had been rescheduled to another date, but the lapse in appropriations prevented the immigration courts from issuing new hearing notices far enough in advance of the prior hearing date,” the agency said in a statement. “In other cases, EOIR did not receive the Notice to Appear (NTA) in a timely manner. Immigration proceedings do not commence until the Department of Homeland Security has filed an NTA with an immigration court.”

Attorneys with the American Immigration Lawyers Association said they’ve received more than 1,000 reports of immigrants who had notices to appear in court containing fake dates, though they said it’s extremely difficult to track.

Mothers with small children, families and confused couples clutching manila folders crowded the sidewalk in San Francisco Thursday while others filled nearby coffee shops and restaurants after being told to come back a different day. The news was particularly troubling for immigrants who traveled several hours to get to the courthouse, many relying on relatives and friends for rides.

More than a dozen people waiting outside the courthouse declined to be interviewed but told The Chronicle that staff informed them court wasn’t in session Thursday. Some people who showed up in the morning were asked to come back later in the day, though it’s unclear what happened once they returned.

***************************************

As I’ve reported before on “Courtside,” contrary to the myths promoted by Trump, DOJ, and DHS, migrants generally appear for court when they get valid notice with real hearing dates and actually have the system explained to them (usually by an attorney); ironically, it’s often EOIR (“the lovable donkey”) that “Fails to Appear” (“FTA”) with an assist from their “partners in crime” over at ICE.

Would a “real court” let the “cops” run roughshod over them and their dockets as EOIR permits ICE to do? Would a “real President” shut down the Immigration Courts over a wall that will have NO, I repeat NO, “immediate impact” on migration while forcing tens of thousands of “ready to try removal cases” to the end of dockets that already stretch out four or more years in some locations?

Part of the problem is the continuing failure since the Clinton Administration of the DOJ to implement the statutory contempt of court authority granted to the Immigration Judges by Congress approximately two decades ago! A few contempt of court orders directed at ICE Agents and the ICE Chief Counsel who are failing to control their so-called “clients,” or perhaps at Secretary Nielsen herself, would bring these absurd, illegal, time-wasting practices that actually hurt real human beings and sow chaos in our justice system to a screeching halt!

That’s why an independent Article I Immigration Court is an essential priority in fixing our immigration system, including the procedures both for granting asylum and other relief promptly, fairly, and in accordance with due process, and issuing removal orders for those who don’t qualify. The current system does neither, for reasons largely beyond the control of the Immigration Judges (although some judges at both the trial and appellate level bear responsibility for failing to carry out in a fair and unbiased manner, consistent with due process, the generous, humanitarian statutes for the granting of asylum and implementing the legal mandates for other forms of protection from persecution and torture. That’s why a transparent, merit-based selection and reappointment system, with provision for public input is essential to an Article I system).

News from the “Journalism Carousel:” Star immigration reporter Priscilla Alvarez has moved to CNN from her prior birth over at The Atlantic. Congrats to Priscilla and to CNN!

PWS

02-01-19

TRUMP’S IMMIGRATION POLICY: “MALICIOUS INCOMPETENCE!” — Also, ICE Intentionally Falsifies Court Hearing Dates — Where Is The Accountability?

https://www.truthdig.com/articles/incompetence-plus-malice-add-up-to-trumps-losing-formula-on-immigration/

Bill Boyarsky writes for Truthdig:

From the beginning of Donald Trump’s presidential campaign, the immigration issue has defined his political profile. More than anything else, it has opened a window on his authoritarian mind, his disdain for the truth and for democratic institutions. Such contempt has revealed the dangers of Trumpism to much of a nation governed, often imperfectly, by the law. The way immigrants are locked up in detention centers without trial warns us of the possibility of a police state.

Last week, the president’s braggadocio crumbled in the face of facts and the strategic opposition of House Speaker Nancy Pelosi. She clearly saw beyond the façade as she took the measure of her opponent.

Trump’s signature combination of untruthfulness, ignorance and arrogance became evident to the country on Friday when maps appeared on cable television showing planes stacking up at airports, sending passengers into a state of exasperation that transcends partisan politics. Those deficiencies were further exposed when he, while putting an end to the protracted government shutdown, used his concession speech in the White House Rose Garden on Friday to rehash his lying attacks on immigrants.

Trump repeated his call for a wall, arguing that only a wall would stop the drug dealers and other criminals from coming across the southern border. But he pulled back from the “Build the Wall” promises that stirred nationalistic crowds at his rallies. “We do not need 2,000 miles of concrete wall from sea to shiny [sic] sea—we never did,” he said, insisting that he had never proposed one.

On the contrary, as Linda Qiu and Michael Tackett wrote in The New York Times:

Dozens of times during the 2016 campaign, Mr. Trump promised to build a wall along the southwestern border, usually saying it would be 1,000 miles at varying heights and costs. At times the building materials changed. He mentioned concrete, steel and, at one point, even a wall that would have solar panels. But a wall and the unsupported pledge that Mexico would pay for it were foundational elements of his campaign, and Mr. Trump has continued to make similar assertions throughout his presidency.

Except on Friday. Qiu and Tackett also picked up that detail: “ … notable was something Mr. Trump did not say, namely that Mexico would pay for the wall. …”

As he had from the beginning of his presidential campaign, Trump trafficked in falsehoods Friday in the Rose Garden when he described the immigrants trying to cross the border into the United States as dangerous criminals.

Figures from Syracuse University’s Transactional Records Clearinghouse(TRAC), a respected compiler of immigration statistics, refute his claim.

As of June 30, 2018, Immigration and Customs Enforcement had 44,435 immigrants in custody. Of these, four out of five had no criminal record or had committed only a minor offense, such as a traffic violation. Of the remainder, only 16 percent had committed crimes considered serious, which includes selling marijuana, now legal in many states. Of those eventually convicted of a crime, most were for illegal entry into the United States, a misdemeanor.

Another factor to consider is the incompetence of the way Trump administers his anti-immigrant policy. His former Attorney General Jeff Sessions drastically reduced the grounds for immigrants seeking asylum in the United States. Under his plan, dangers posed to immigrants by criminal gangs or domestic violence were no longer accepted as reasons for granting asylum—a devastating legislative blow to those fleeing gang-ridden Central American countries.

Other restrictions on asylum were also imposed. When immigrants present themselves to border officers and ask for sanctuary, they are arrested for illegal entry. They are then placed in detention, awaiting a hearing in immigration court, or are deported, although courts have ordered some released.

Sessions also ordered judges in immigration courts to speed up their hearings and decision-making protocols. He claimed this directive was aimed at reducing the backlog of cases awaiting hearing in immigration court that involve immigrants either in detention or freed through the legal intervention of immigrant advocates.

The backlog, TRAC said, totals 1,098,468—more than double the waiting list in January 2017 when Trump took office. It would take immigration courts more than five years to work their way through the backlog. This explains why so many immigrants are held in detention for years without a trial in onerous conditions, and why those freed from detention are in legal limbo, subject to being stopped, questioned and improperly arrested.

When Trump shut down the government, most immigration hearings were cancelled. That gave the president a lesson in the law of unintended consequences. Rather than carry out his intent—hustling the immigrants out of the country—he has done the opposite and has increased the logjam.

In short, incompetence plus evil intentions have brought the country to this point.

Trump has been able to paper over his incompetence with bluster. The mass media has served as an accomplice. Too many stories focus on his performance. Sometimes, even his critics offer grudging admiration.

The shutdown ripped away the mask. Immigration was the central issue behind Trump’s closure of the federal government. His lies about immigration were exposed, as was his bungling execution of a cruel policy.

Bill Boyarsky

Political Correspondent

Bill Boyarsky is a political correspondent for Truthdig. He is a former lecturer in journalism at the Annenberg School for Communication of the University of Southern California. Boyarsky was city editor of….

*****************************************

Meanwhile, over at CBS News, Kate Smith continues her great coverage of the illegal and unethical behavior that has become the norm at DHS and which is enable and tolerated by an enfeebled politically dominated EOIR.

ICE agents told hundreds of immigrants to show up to court on Thursday or risk being deported. But lawyers say many of those hearings won’t happen because the dates ICE provided are fake.

Immigration attorneys in Chicago, Miami, Texas, and Virginia told CBS News their clients or their colleagues’ clients were issued a Notice to Appear (NTA) for hearings scheduled Jan. 31. The attorneys learned the dates weren’t real when they called the courts to confirm. ICE is required to include court dates with court notices, per a Supreme Court decision last summer, but most don’t actually reflect scheduled hearings.

The American Immigration Lawyers Association issued a “practice alert” on Tuesday evening, warning members “the next upcoming date on NTAs that appears to be fake is this Thursday.”

On Wednesday evening, the Executive Office of Immigration Review, the body that oversees all the immigration courts, instructed all attorneys with a January 31 NTA “to confirm the time and date of any hearing.”

“There will be another episode of mass confusion in the immigration courts [Thursday] as a result of the DHS’s decision to issue Notice to Appear with fake immigration court dates,” Brian Casson, a Virginia-based immigration attorney, said in an email to CBS News.

In a statement Thursday morning, an ICE spokesperson said the agency was working with the Department of Justice “regarding the proper issuance of Notices to Appear.” The spokesperson said the government shutdown “delayed” that process, “resulting in an expected overflow of individuals appearing for immigration proceedings today/January 31.”

The fake notices stem from a Supreme Court ruling last summer. Prior to the decision, ICE officials used to send immigrants NTAs with date listed as “TBD” – or “to be determined.” The immigration court would issue the migrant an official hearing notice later, said Casson.

One effect of this: The NTAs could block an immigrant’s eligibility for “cancellation of removal,” a legal residency status granted to some undocumented immigrants after 10 uninterrupted years of living in the U.S. A NTA, even without a hearing date, would interrupt the 10-year “clock,” said Jeremy McKinney, a Charlotte, North Carolina-based immigration attorney, in a telephone interview with CBS News.

A Supreme Court ruling last summer — Pereira v. Sessions — banned the practice, requiring all appearance notices to use actual dates.

However, systems weren’t in place for ICE to see the court’s schedule, so ICE issued fake dates instead. Immigrants were instructed to appear on weekends, midnight, and dates that just didn’t exist, like Sept. 31, multiple attorneys told CBS News.

On October 31, hundreds of immigrants received phony NTAs. They showed up to court for non-existent hearings to find “extraordinarily long lines,” according the recent alert from the immigration lawyers’ organization.

“It was complete dysfunction and confusion,” said McKinney.

The problem became so pervasive that on Dec. 21, the Executive Office of Immigration Review issued a rare policy memo telling ICE agents and DHS that courts would “reject any NTA in which the date or time of the scheduled hearing is facially incorrect.”

Matthew Kriezelman, a Chicago-based immigration attorney, has four clients with hearings scheduled for tomorrow. After checking with the court earlier this week, he found out that two of those appearances weren’t real: administrators had no record of the hearings and told Kriezelman his clients would have to wait until the court itself sent them a hearing date.

Kriezelman’s clients are among the lucky ones; experts estimate less than half of immigrants have legal representation. That means hundreds won’t realize their Jan. 31 hearing date was phony and will show up anyway, said Kriezelman.

The court in Chicago handles all the immigration cases in Wisconsin, Illinois and Indiana, meaning many immigrants could be traveling for hours on Thursday morning for a hearing that doesn’t actually exist, Kriezelman said.

When they show up, nobody will be able to assist — because of the extreme cold weather, the Chicago immigration court is scheduled to be closed on Thursday, Kriezelman said.

Failure to show up to an immigration hearing can result in immediate removal proceeding, making immigrant especially wary when they hear they don’t need to come into court after all, said Kriezelman.

“They feel like someone is screwing with them or playing a terrible joke,” Kriezelman said. “It’s really confusing for a lot of people, especially ones that are unrepresented.”

Read more CBS News immigration coverage: The country’s busiest border crossing will allow 20 people to claim asylum a day. They used to take up to 100

These Central Americans have a second chance at asylum after being “unlawfully” deported. First ICE needs to bring them back

Every congressperson along southern border opposes border wall funding

********************************************

Bill and Kate must be “reading my mind.” Keep on exposing the truth about this cruel, dishonest, and incompetent Administration and all of the “ethics-free minions” who carry out often illegal orders! What goes around, comes around, folks.

Anybody and I mean anybody, could need a fair, impartial, and honest justice system at some point in life. Why are so many folks standing by and letting Trump and his toadies destroy it? Piece by piece, the most important foundations of our democracy are being destroyed right in plain daylight!

Also congrats to my good friend and long-time fellow member of the Beverley Hills Community United Methodist Church family Mike Tackett of the NY Times and his colleague Linda Qiu for their continuing outstanding coverage of the truth about Trump’s disingenuous, wasteful, and cruel immigration policies. You’re making a difference, Mike and Linda! Keep at it!

There was a time when dishonesty and falsely filling out official government documents (known as fraud or willful misrepresentation in some criminal law circles) would get a Government employee fired, prosecuted, or disciplined. Not any more. With our country headed by a grifter “Liar-in-Chief” “anything goes” unless you are a migrant, a minority, or a member of the LGBTQ community. In that case, expect “no mercy.”

Also remember that White Nationalist former AG Jeff “Gonzo Apocalypto” Sessions disingenuously pontificated about “the rule of law,” called DHS “a partner of EOIR,” and referred to immigration attorneys as “dirty lawyers.” He tried to cover up his gross mismanagement and political manipulation of the Immigration Courts by falsely blaming migrants, their attorneys, and the Immigration Judges themselves for the mess he himself, and also to a large extent DHS, caused.

He also spread false narratives about “widespread asylum fraud” and made the demonstrably false claim that asylum applicants were somehow a “major cause” of 11 million (mostly hard-working and law-abiding) “illegals” as he liked to contemptuously call them in his racist lingo. I doubt that there have even been 11 million asylum applicants total since the enactment of the Refugee Act of 1980.

Certainly, the causes for our “extra-legal” immigration system go far beyond alleged asylum fraud (which, in fact, does exist on a much smaller scale and in my experience is generally effectively uncovered, investigated, and aggressively prosecuted by DHS). They are a direct result of outdated and misguided policies that failed to recognize legitimate market forces in creating legal immigration categories and a failure to fully carry out in a good faith manner our humanitarian obligations under the refugee laws and international conventions.

Fact is, even if restrictionists like Sessions won’t admit it, the vast majority of the 11 million undocumented individuals should have been screened and admitted under our legal immigration system. The U.S. Government created the problem; so far, they have lacked the honesty, leadership, and courage to fix it in a fair and humane way that will benefit both our country and the migrants, current and future. Immigrants are America. And, except for our Native American brothers and sisters, we are all immigrants!

That’s why we have the “New Due Process Army!” Enlist today, and help fight the forces of “malicious incompetence” everywhere and for as long as it takes to win the battle and vindicate the Constitutional right of everyone in American to enjoy the benefits of Due Process of law.

PWS

01-31-19

🤡”CLOWN COURT REPORT” — “ADR [“Aimless Docket Reshuffling”] is the watchword” — Yeah, it’s hard times under the Big Top (particularly if you’re in search of elusive and officially maligned Constitutionally-required Due Process!)

🤡🤡🤡🤡🤡

🤡”CLOWN COURT REPORT” — “ADR [“Aimless Docket Reshuffling”] is the watchword” — Yeah, it’s hard times under the Big Top (particularly if you’re in search of elusive and officially maligned Constitutionally-required Due Process!)

An inherently reliable, highly anonymous source deep within America’s most dysfunctional court system tells Courtside: “ADR is still the watchword. No telling how many cases are off calendar at this point.”

Origins of the term “Clown Court” 🤡 (it actually preceded the Trump Administration):

Once upon a time, when I was an Immigration Judge, I was assigned to do a 100-case Master Calendar by televideo to a court in another state. Slight problem: All of the files were in a third place. Another hitch: All of the ICE Assistant Chief Counsel’s files had been sent to the wrong office. In other words, no “government files” of any kind for 100 cases. Adding to the degree of difficulty: EOIR sent me a Spanish interpreter; but almost everyone on the calendar actually spoke French or a West African language (something clearly shown in the EOIR “computer system,” such as it was). I “finished” with this circus about 5 pm. But, none of my colleagues was around. They were in the conference room. I burst through the door and yelled “This is ——————— Clown Court.” Unfortunately, the then Chief Immigration Judge was making one of his rather infrequent visits to our Court. Needless to say, he wasn’t amused by my sudden outburst of unvarnished truth. Fortunately, he happened to be a long-time friend who owed his original hiring at the “Legacy INS” as well as several “up-ladder career moves” largely to me when I was the Deputy General Counsel/Acting General Counsel. So, I survived to “perform under the big top” another day. And remember, this was back when the Immigration Court was actually better managed by comparison with today’s intentional “man-made disaster.” Then, it was “quirky,” but not necessarily “beyond the pale.” It’s been straight downhill since. Every time we think it’s hit bottom, DOJ and EOIR management seem to dig a little deeper.

PWS

01-31-19

SCOTT BIXBY @ THE DAILY BEAST: Trump Puts U.S. Immigration Courts Into Freefall – Judges & Experts Doubt It Can Be Fixed Without Major Due Process Enhancements — “Fixing the backlog without sacrificing undocumented immigrants’ right to due process—a prospect with which Trump has already publicly flirted—could require a wholesale reconfiguration of the immigration court system, Marks said, starting with removing it from the purview of the Department of Justice.”

https://apple.news/A8VLzlyN7QImERHmUEChNnA

Scott Bixby reports for The Daily Beast:

President Donald Trump’s record-long shutdown may be over, (for now), but immigration judges and attorneys worry that its disastrous effects on the immigration court system will last for years.

The 35-day government shutdown, ignited over Trump’s demands for congressional funding of his long-promised border wall, exacerbated the very immigration crisis the president claims the barrier would solve, halting nearly all immigration court cases and putting three in four immigration judges on furlough. Hearings on asylum cases, deportation, and appeals against orders of removal were delayed indefinitely, pending a “reset” upon the government’s re-opening that shuffled tens of thousands of cases to the back of the line.

The only way to solve the pileup, one prominent immigration judge told The Daily Beast, is a trade: Dump Trump’s demand for a 2,000-mile wall, and instead double the number of immigration judges to deal with cases.

“If we’ve got a million cases backlogged, we need a thousand judges,” said Judge Dana Leigh Marks, an immigration judge in San Francisco and president emeritus of the National Association of Immigration Judges. The current roster of roughly 400 judges, she said, “is less than half of what we need.”

“We’re having a tsunami of retirements because working conditions have become so unbearable,” said Marks. “It is incredibly stressful, because we know that the consequences of our cases are literally life and death.”

The Department of Justice, which oversees the immigration court system, already had a crisis on its hands before the shutdown, Marks said, with a backlog of at least 800,000 cases in a system with too few judges and too little funding.

The swell of asylum seekers from El Salvador, Guatemala, and Honduras, combined with the Trump administration’s crackdown on undocumented immigrants in the United States, had created a years-long backlog of pending immigration court cases. The number of pending immigration court cases grew by 84 percent since the end of 2013, according to the Department of Justice’s Executive Office for Immigration Review, and jumped by 26 percent just since the end of 2016.

“They allowed the courts to get to the anemic state that we were in prior to the shutdown,” said Marks, who has served as an immigration judge for 33 years. With the cancellation of tens of thousands of immigration cases that will now be shuffled to the back of a years-long line, “the shutdown’s effects will last for years.”

That backlog—which doesn’t even include an estimated 300,000 closed “low-priority” cases that the Justice Department ordered reopened in May—is currently being pushed through a mere 60 immigration courts across the United States. The roughly 400 immigration judges who keep that system moving have been given the Sisyphean task of clearing their dockets, a mission that even the most industrious judges think may be unfeasible.

“Most of us are extremely pessimistic about the current state of our dockets,” said Marks, noting that immigration judges are optimally supposed to go through four three-hour hearings per day. “They’re booked in an unrealistically heavy-packed manner that will not mean that we can finish all of the cases that are set on a given day.”

In a bid to speed through the backlog, the Department of Justice announced in April that it would impose quotas on judges, requiring the completion of 700 immigration cases per year to earn a “satisfactory performance” rating, as well as less than 15 percent of their cases remanded to a higher court—meaning that judges have to both increase the speed of their proceedings while decreasing errors that could lead to an appeal.

“The purpose of implementing these metrics is to encourage efficient and effective case management while preserving immigration judge discretion and due process,” wrote then-Attorney General Jeff Sessions when the policy was announced.

That new policy, Marks said, would only increase the pressure on the judge to serve two competing masters: the Department of Justice quotas and due process.

“The quintessential skill of a judge is knowing how to schedule your dockets, and yet we’re being told for political reasons, for the optics, how to do so,” said Marks, who warned that forcing judges to speed along complex proceedings encourages future appeals based on questions of judicial motivation.

“These are not simple and straightforward” cases, said Marks, who once famously likened deportation proceedings to “doing death penalty cases in a traffic court setting.”

“An immigration judge is shifting through four or five different times that the story has been told to see whether it’s consistent or inconsistent… Political optics is at tension, if not in conflict, with a judge’s role to ensure that each case in front of us provides the individual with due process.”

Add in a shutdown, immigration attorneys told The Daily Beast, and an overburdened system risks collapsing into chaos.

“Each day that there’s a government shutdown, you’re setting yourself up to add months” before a hearing, said Michael Wildes, an immigration attorney who represented Melania Trump and her parents in their immigration proceedings. “There will be enormous delays. For undetained individuals with court dates… they will back up even more egregiously than they have.”

Unclogging the dockets may be impossible, said Jason Dzubow, a Washington D.C.-based immigration attorney specializing in asylum law, leaving clients with good cases waiting for years to have their day in court.

“It’s just gonna be way too complicated to give people any kind of priority—which then, of course, causes a huge chain reaction, because it’s already a big mess,” Dzubow said. “What are they going to tell their families?”

Fixing the backlog without sacrificing undocumented immigrants’ right to due process—a prospect with which Trump has already publicly flirted—could require a wholesale reconfiguration of the immigration court system, Marks said, starting with removing it from the purview of the Department of Justice.

“People feel like there’s a thumb on the scales… because of the historically close relationship between the prosecutors‚ the Department of Homeland Security and the judges,” said Marks. “Judges have become, in a way, the sacrificial lamb in this process, because so much pressure has been applied to us. If we don’t follow, it renders us subject to personal discipline or training for evaluations that we are performing poorly, which can affect our very ability to retain our jobs.”

Such a dynamic, Marks said, has “a tremendous chilling effect.”

“A political branch is not the proper administrator for a neutral legal system.”

But in the meantime, both judges and attorneys working in the clotted immigration system feel that the $5.7 billion Trump has demanded for his border wall would be put to better use in hiring more immigration judges.

“There is an enormous divide between the amount of traffic and judges,” said Wildes. “In many ways, immigration has been looked upon as a stepchild in our legal system, where people recognize that it’s only a civil matter rather than a criminal matter. It actually has greater import—particularly when someone is facing banishment from the country.”

*******************************************

Yup! Should be no surprise to readers of “Courtside.” In my experience, EOIR never really recovered from the mindless 2013 shutdown. Anybody with any real knowledge or who cared about our Government, our Constitution, and real immigration enforcement could have seen this coming “from a million miles away.” But, we’re saddled with a Kakistocracy — a “Clown Administration” if you will. 🤡

PWS

01-30-19

Related posts:

OUR TEAM:

My Takeaways:

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“Injustice Anywhere is a Threat to Justice Everywhere. . . . Whatever Affects One Directly, Affects All Indirectly.”

Dr. Martin Luther King, Jr.

Letters From the Birmingham Jail

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Immigration Court Backlog Surpasses One Million Cases

Pending Cases Represent More Than Five Years of Backlogged Work

Why Does the Backlog Continue To Rise?

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‘I’m afraid and nervous’

An ongoing problem

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Origins of the term “Clown Court” 🤡 (it actually preceded the Trump Administration):

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